Rights and Responsibilities is a recurring series by Richard Garnett on legal education, the role of the courts in our constitutional structure, and the law of religious freedom and free expression.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Millions of American kids are returning to school this month, and to classrooms decorated with carefully curated displays, images, pictures, and posters. This décor is as much a part of teachers’ plans and aims as textbooks, worksheets, and lesson plans. It is meant to send messages – about history and values, about role models and recycling.
 
Over the past 15 months, legislatures in several states have called for particular additions to the communicative content of classroom walls. Specifically, in Louisiana, and then in Arkansas and Texas, laws have been enacted that mandate displays of the Ten Commandments. A wrinkle, though – a possible bump in the legal road for these messaging moves – is the fact that the Supreme Court, in a 1980 case called Stone v. Graham, struck down just such a requirement in Kentucky, concluding that it violated the First Amendment’s prohibition on establishments of religion because it had “no secular legislative purpose” and “serve[d] no [] educational function.”

Perhaps not surprisingly, then, a federal trial court blocked the Louisiana law, relying on Stone, and in late June a federal appeals court agreed. The Arkansas law was similarly enjoined earlier this month, and legal challenges to the Texas law are pending.

What is going on? Why did these states, in a kind of “blast from the past,” enact a demand that seems so clearly to conflict with settled and familiar court precedent? Answering these questions first takes us back to a 1971 case called Lemon v. Kurtzman and then forward to the court’s closely watched and much anticipated 2022 ruling in Kennedy v. Bremerton School District.

Start with Lemon, in which the justices invalidated programs in Rhode Island and Pennsylvania that provided assistance in various forms to non-state schools, including religious ones. Looking back at a variety of earlier decisions, Chief Justice Warren Burger culled and then cobbled together a tripartite doctrinal gauntlet for cases involving the First Amendment’s establishment clause: First, government actions must have a “secular purpose”; second, they may not have the “principal or primary effect” of “advanc[ing]” religion; and third, they are invalid if they create or contribute to “excessive government entanglement” with religion.

For the next 50 years or so, law-school graduates preparing for bar examinations dutifully recorded, and regurgitated as needed, this “Lemon test.” In a similar way, judges on state and lower federal courts gamely evaluated various government actions – moments of silence and benedictions in public schools, public holiday displays and memorials with religious themes, educational-assistance and social-service programs, and so on – by marching through the test’s three requirements, or “prongs.” One can say, without risking oversimplification or unfair generalization, that, whatever the bar-exam results might have been, judicial invocations – incantations, perhaps? – and applications of the test did not yield plausible, or even consistently implausible, results.

And while law students and judges were doing their best with the test, the Supreme Court regularly found ways to avoid applying it, to adjust and amend its “prongs,” or to chide readers for thinking that it was ever meant to be a test at all. Especially when applying it as a bar examiner might expect would have yielded glaringly ahistorical or politically inconvenient results, it regularly found reasons – longstanding historical practice, for example, or semiotic speculations about the social meanings of government actions to hypothetical “reasonable observers” – not to. Lemon nevertheless seemed to live on long after commentators, understandably, pronounced it dead, which caused Justice Antonin Scalia to quip, in a 1993 case, that the test was like “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”

Looking back, it is not hard to see why the test was unhelpful when it was applied and also why it was often thought necessary – by the justices, who had the luxury of ignoring their creation – not to apply it. Especially as more justices came to the court with a view that the Constitution’s judicially enforceable meaning should cohere with the text’s original public meaning and with longstanding practices, the disconnect between the appropriate judicial role and the Lemon test’s demands could be intimidatingly wide. To mention just one example: It just cannot be right that government actions that “advance” religion are unconstitutional. Religion is “advanced,” after all, whenever it is accommodated – as it always has been, through exemptions and other methods – and, indeed, whenever it benefits in an even-handed way from public benefits like police and fire protection, paved roads, and the electric grid. It is not, most of the justices came to understand, an “establishment” of religion for governments to do things that benefit religious believers, institutions, and communities.

Which brings us to Kennedy v. Bremerton School District. This case involved a public high school’s football coach who had been disciplined for praying on the field after games. On the way to reversing the lower courts’ determination that the establishment clause not only permitted, but required the school district to prevent the coach’s public prayers, the court reported – in a way that seemed to express surprise that everyone was not already aware – that it had, in fact, “long ago abandoned Lemon.” Note that Justice Neil Gorsuch, writing for the majority, did not use the word “overrule” (although the dissenting justices and many commentators did). This at least raises the question: What remains of the various precedents that at least purported to rely on Lemon and what, going forward, are the tests, doctrines, standards, criteria, indicia, clues, hints, and vibes that courts and lawmakers, scholars and citizens should use to determine what the First Amendment’s rule against religious establishments does, and does not, require? After all, it is certainly not the case that all precedents that invoked, and doctrines that reflect, in one way or another, Lemon’s requirements have evaporated.

And so, the Kennedy decision, and the doubts it stoked about the status of Lemon, explain why some states are now bringing back in-school Ten Commandments displays, 45 years after Stone. Did Stone survive Kennedy, or is it now buried, for good, with the “ghoul” that was Lemon? The legal challenges to the new state laws could provide the justices with a chance to clarify what the Lemon-less law of the establishment clause will be.

This involves several considerations. One can, and should, distinguish between, on the one hand, inserting evangelizing religious material in the curriculum of a state school and, on the other, teaching kids about the role of religious texts and actors, or permitting non-disruptive private religious expression by students and teachers, or allowing religious groups access to meeting spaces. After all, just a few months ago, in Mahmoud v. Taylor, a majority of the justices underscored the potential for ideological curricular materials to burden students’ and parents’ religious liberty. And one can recognize the Lemon test’s unworkability without retreating from the rule that government actors should not make religious decisions or interfere with the appropriate autonomy of religious groups. Indeed, the appropriate differentiation between political and religious authority was always what church-state “separation” was supposed to mean.

But what about Lemon’s “secular purpose” requirement? According to the court in Louisiana, Kennedy left this “prong” of the test undisturbed, and that state’s Ten Commandments law violates it. Is such a demand possible to enforce in a principled, consistent way, or is it subject to the same objections that caused the court to so often ignore, and then eventually to “abandon,” judicial inquiries into, or speculations about, “effects” and “endorsement”?

Almost 40 years ago, in another case out of Louisiana – this one involved public-school instruction about “evolution science” and “creation science” – Scalia entertainingly set out some reasons for being skeptical about the existence, and certainly the ability of reviewing courts to identify the “purpose” of, government action. Among other things, Scalia observed, any particular legislator “may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted ‘yes’ instead of ‘no.’” Textualist scholars of statutory and constitutional interpretation have consumed forests expressing related doubts about judicial second-guessing and divinations when it comes to legislatures’ and legislators’ “purposes.”

And there is, perhaps, another problem: What does it mean for a law’s purpose, or for a law, or for a government action, or indeed for anything, to be “secular”? Sure, the Ten Commandments are “religious,” but they are also displayed in Spanish marble in the “secular” courtroom where the justices sit. The word is often thought to mean “anti-religious,” but that’s not right (even if anti-clericalism and hostility to religious belief and actors often travel with ideological secularism). The Catholic Church has had “secular” priests – that is, priests who do not belong to religious orders – for centuries. If we connect the term to its Latin origins, it simply denotes the things of this world, or age, as opposed to those of the next. Religion, though, is very much a part of this age, even as it concerns also and anticipates, in many cases, the next.

Government action that protects religious freedom relates to religion, and yet it still has a “secular” purpose; in our tradition, legally protected religious liberty is seen as conducive to human flourishing and healthy communities in this world. Government decisions to cooperate with, and to support financially and otherwise, the this-worldly work of religious agencies, schools, and hospitals has a “secular” purpose. Teaching children, even in state schools, what they need to know to intelligently read Augustine and Milton, Lincoln and King, has a “secular” purpose. Does posting the Ten Commandments, in one form or another, on the wall of a state-school classroom? We will find out soon.

The post The Ten Commandments and a “secular purpose” appeared first on SCOTUSblog.