The Establishment Clause and Free Exercise Equality: In Bladensburg Cross Case, the High Court Partially Restores Founders’ View

June 24, 2019

Everyone should welcome the Supreme Court’s holding in American Legion v. American Humanist Association that the Bladensburg Cross memorial does not violate the Constitution’s ban on a government establishment of religion. The American Humanist Association argued in error that the presence of the Cross on Maryland public land represented an unconstitutional establishment of religion. Such a view misses a fundamental First Amendment purpose: free exercise equality.

The First Amendment contains two religion “clauses” – the ban on establishment of religion, and the guarantee of the “free exercise” of religion. The two clauses were intended by the founders to achieve a single overriding purpose: free exercise equality. Their goal was to protect the right of religious free exercise for all Americans, and all of America’s religious communities, against the power of government.

The founders viewed religion as a vital source of virtue for citizens in a free society and as providing an important limit on government. Accordingly, they sought to secure a place for religious expression in American public life equal to nonreligious expression, which they protected by other rights guaranteed in the First Amendment (speech, assembly, and redress of grievances).  

In his concurring opinion, Justice Thomas noted that the Establishment Clause was designed to prevent government coercion of religion, which typically occurred through attempts “to control religious doctrine or personnel, compel religious observance, single out a particular religious denomination for exclusive state subsidization, or punish dissenting worship.”

In their Bladensburg decision, the justices were divided over whether a modern attempt to interpret and apply the Establishment Clause in a very different way – commonly known as the “Lemon Test” stemming from the Court’s 1971 decision in Lemon v. Kurtzman – should be discarded entirely. The Lemon Test stipulates that any government action “advancing or endorsing religion” is an unconstitutional establishment of religion. Lemon requires government “neutrality,” not simply between religions, something the founders intended, but also between religion and non-religion, which they did not intend.

Such an interpretation defeats the goal of free exercise equality. Demanding neutrality between religious and nonreligious expression (which is already protected by free speech) while forbidding government support for religion in any form, inevitably means relegating religion to the private sphere and its removal from American public life. It threatens long-established practices designed to encourage public religious participation, such as tax exemptions for houses of worship and legislative exemptions from laws that burden religious free exercise. This kind of government support has produced the most dynamic, effective civil society in history, anchored by faith-based expression. 

In its friend of the court brief, RFI’s Islam and Religious Freedom Action Team urged the Court to declare Lemon dead, arguing that its “exclusion of all religions from public depictions and pronouncements does not comport with the text or the historic understanding of the Establishment Clause, nor is it ideal in a society that wishes to acknowledge and encourage a diverse and pluralistic populous.”

Since the founding, America has become far more religiously diverse. This demographic reality, in part the result of our constitution’s vigorous protection of free exercise equality, places an even greater premium on protecting religious freedom for all religious traditions in our nation. While many of those traditions have profound theological differences, most support the radical theological premise on which American democracy rests – that God created each of us equal, and endowed us with certain rights that cannot be legitimately infringed by any human agent, especially government.

The first of those rights is religious freedom.