The other day I came upon an essay written by an Advisory Board Member of the Military Religious Freedom Foundation (MRFF), retired Brigadier General John M. Compere. I have read and responded to General Compere’s views before. In my view, the General espouses an overly expansive view of the Establishment Clause of the First Amendment at the expense of both the Free Exercise and Free Speech Clauses. I also think that he advocates limits to the Free Exercise Clause that are supported neither by the cons utional text nor by Supreme Court decisions.
In the remainder of this reply, I will use the format I used previously when replying to General Compere’s views. In order to ensure that I don’t misquote the General, I reproduce his words in bold print. Where I believe a comment is called for, I do so in regular print following the word, “COMMENT.” Hopefully, that will make sense as you read on.
The General’s article begins as follows:
The United States Cons ution was signed on September 17, 1787. Our Bill of Rights, the first 10 Amendments to the Cons ution, was ratified on December 15, 1791.
The 1st & 2nd Amendments were first and second priority of our Founders. The 1st Amendment provides our historic trinity of religious liberties (freedom from public religion, freedom of private religion, and freedom of religious speech) and other speech or press, and the right to assemble and pe ion. The 2nd Amendment provides our right to keep and bear arms (individually and collectively).
COMMENT. First, I believe that the General is wrong in asserting that the First Amendment protects “freedom from public religion”—at least in the absolute sense. One can note public displays of religious sentiments and symbols on government property throughout our society, and the Supreme Court has upheld many (but, admittedly, not all) such displays as cons utionally permissible. Even the Cons ution of the United States itself includes a clear Christian religious reference, when it ends as follows:
“done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven . . . .” (emphasis added). Such wording is commonly understood to refer to Jesus Christ. The Founders apparently did not believe that a reference to Jesus Christ as “our Lord” violated so-called church-state separation. And, to those thinking “Gotcha!”, yes, I am aware that the “year-of-our-Lord” phrase pre-dates the adoption of the First Amendment.
In case one wonders whether the Founders had a change of heart reflected in the First Amendment, let’s look at what the Supreme Court has said about interpreting the limits of the Establishment Clause. Let’s begin by examining what the Court has to say about the appointment and payment from the federal treasury of legislative chaplains for both houses of Congress (this should be authoritative, given General Compere’s statement below that the Supreme Court has “exclusive authority to interpret the Cons ution”). I dealt as follows with this very same issue in my previous reply to an essay by General Compere (you can find my full argument here):
One of the methods used by the Supreme Court for interpreting the meaning and legal reach of the First Amendment is to examine how those who drafted and ratified the Amendment acted in light of its express terms. One can begin to understand what the Establishment Clause allows (and disallows) by examining what transpired in the earliest years of our Nation during the period when the First Amendment was being drafted and subsequently ratified. For example, “the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer,” see Marsh v. Chambers, 463 U.S. 783, 787-88 (1983), and a “statute providing for the payment of these chaplains was enacted into law on September 22, 1789.” Id. at 788. Moreover, within days of legislating to pay Congressional chaplains from the federal treasury, “final agreement was reached on the language of the Bill of Rights.” Id. From these facts, the Supreme Court concluded that, whatever the Establishment Clause means, it does not mean that paid, legislative chaplains and their daily, public prayers violate the Establishment Clause. Id.; see also id. at 790 (“It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a Chaplain for each House and also voted to approve the draft of the First Amendment for submission to the States, they intended the Establishment Clause to forbid what they had just declared acceptable.”). The Marsh Court concluded that chaplain-led prayer opening each day’s session in both Houses of Congress “is not . . . an ‘establishment’ of religion,” but rather “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id. at 792.
I then continued:
Early national leaders also acted in ways that strict separationists today argue expressly violate the Establishment Clause. For example, President Washington issued proclamations of thanksgiving to Almighty God during his presidency, and President Adams called for a national day of fasting and prayer. President Thomas Jefferson—a man often described as a strong defender of strict church-state separation—signed multiple Congressional acts to support paid Christian missionary activity among the Indians. See Daniel L. Driesbach, Real Threat and Mere Shadow: Religious Liberty and the First Amendment 127 (1987) (noting that the 1803 treaty with the Kaskaskia Indians included federal funds to pay a Catholic missionary priest; noting further treaties made with the Wyandotte and Cherokee tribes involving state-supported missionary activity). Further, during his presidency, President Jefferson also approved a curriculum for schools in the District of Columbia which used the Bible and a Christian hymnal as the primary texts to teach reading, seeJohn W. Whitehead, The Second American Revolution 100 (1982) (citing 1 J. O. Wilson, Public School of Washington 5 (1897)), and he signed the Articles of War which “[e]arnestly recommended to all officers and soldiers, diligently to attend divine services.” See Charles E. Rice, The Supreme Court and Public Prayer: The Need for Restraint 63-64 (1964). Hence, as one honestly examines Governmental acts contemporaneous to the adoption of the First Amendment, it is difficult to deny that, in the early days of our Republic, church and state existed relatively comfortably (and closely) together, with contemporaries of the drafters of the First Amendment showing little concern that such acts violated the Establishment Clause. As the Marsh Court aptly recognized, actions of the First Congress are “contemporaneous and weighty evidence” of the Cons ution’s “true meaning.” See Marsh, 463 U.S. at 790 (citation omitted).
Further, in Zorach v. Clausen, the Supreme Court aptly noted that “[w]e are a religious people whose ins utions presuppose a Supreme Being. . . .” See 343 U.S. 306, 313 (1952). Accordingly, “[the Government] sponsor[s] an at ude . . . that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.” Id.
As I show below, there are numerous Supreme Court and lower federal court decisions on point that have determined that manifestations of “public religion” are cons utionally acceptable and do not violate the Establishment Clause. This is not an exhaustive list; there are many others, but the list below shows that the government may indeed support “public religion” without running afoul of the Establishment Clause. Among these are the following:
Van Orden v. Perry, 545 U.S. 677, 691 (2005) (allowing a Ten Commandments display on public property).
Am. Atheists, Inc. v. Port Auth. of NY & NJ, 936 F. Supp. 2d 321, 339 (S.D.N.Y. 2013) (allowing display in a public museum of a cross formed by beams found at the World Trade Center).
Freethought Soc’y v. Chester County, 334 F.3d 247, 270 (3d Cir. 2003) (allowing the display of the Ten Commandments near the courthouse entrance).
Twombly v. City of Fargo, 388 F. Supp. 2d 983, 988 (D.N.D. 2005) (allowing continued display of the Ten Commandments near a public library).
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 775 (1995) (allowing display of unattended cross on State Capitol grounds).
Lynch v. Donnelly, 465 U.S. 668, 686 (1984) (allowing a crèche and other Christmas decorations in the city’s holiday display).
Elewski v. City of Syracuse, 123 F.3d 51, 55 (2d Cir. 1997) (allowing the display of a crèche along with other holiday symbols on city property).
Town of Greece v. Galloway, 134 S. Ct. 1811, 1827 (2014) (allowing city council meetings to be opened with sectarian prayer).
Pelphrey v. Cobb County, 547 F.3d 1263, 1278 (11th Cir. 2008) (allowing the county commission to open with volunteer-led, sectarian prayer).
Bormuth v. Cty. of Jackson, 870 F.3d 494, 503 (6th Cir. 2017) (allowing Commissioner-led, sectarian prayer at county meetings).
Marsh v. Chambers, 463 U.S. 783, 792 (1983) (allowing publicly employed chaplains in legislatures).
Katcoff v. Marsh, 582 F. Supp. 463, 476 (E.D.N.Y. 1984) (affirming the cons utionality of the Army Chaplaincy).
Newdow v. Cong. of the United States, 435 F. Supp. 2d 1066, 1076 (E.D. Cal. 2006) (affirming that printing the national motto, “In God We Trust,” on U.S. currency does not offend the Cons ution).
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) (allowing religious club meetings after school on public school property).
Bd. of Educ. v. Mergens, 496 U.S. 226, 252 (1990) (requiring a school to permit an after-school, student-led, Bible club to meet on public school premises when other non-curricular clubs are permitted).
Prince v. Jacoby,303 F.3d 1074, 1094 (9th Cir. 2002) (requiring a school to give the same support to student religious clubs as it provides to secular student clubs).
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993) (allowing the showing of a religious film after hours in public school facilities which were open to non-religious organizations for similar purposes).
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 845 (1995) (requiring a public university to pay the printing costs for a religious student newspaper when it did so for a secular student newspaper).
Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004) (allowing a religious group to distribute flyers and host a table at the “Back-to-School” night on school grounds).
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017) (requiring the distribution of grant program tire mulch to religious preschools on the same basis as to non-religious schools).
Second, I believe that the General is wrong in asserting that the First Amendment merely protects “freedom of private religion.” The actual Cons utional language is “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (emphasis added). There is no requirement that one’s free religious exercise be “private” to garner First Amendment protection. One may publicly exercise one’s religion under the First Amendment. The government may, of course, impose reasonable time, place, and manner restrictions, but such limitations apply to all First Amendment rights, not just those dealing with religion.
Third, I believe the General is not being candid when he mentions freedom of religious speech. For example, the organization he advises, the MRFF, frequently tries to shut down religious speakers because of the religious sentiments they will likely express. A case in point is MRFF President Michael L. “Mikey” Weinstein’s frequent attempts to compel organizations to disinvite persons he and MRFF supporters dislike from addressing prayer breakfasts. They also try to squelch other religious expression with which they disagree, such as demanding that a sign on a military installation reading “God bless our troops” be removed as violating the Establishment Clause by imposing a “Christian” sentiment (I know, I know—I also have a hard time discerning how the use of the generic term “God” is somehow uniquely “Christian”). A final example is that the MRFF believes that the mere presence of a Bible in a POW remembrance display cons utes an unlawful imposition of religion on those who view the display.
General Compere goes on:
The US Supreme Court has the exclusive authority to interpret the Cons ution (Article III) and has done so with respect to the 1st and 2nd Amendments based upon their language, and historic intent as confirmed by public records. That is our American judicial tradition of cons utional construction. No law, past or present, limits the Court’s interpretation to literal language.
COMMENT. First, the General is wrong to say that the Supreme Court has “exclusive authority” to interpret the Cons ution. It does have the ultimate authority to interpret the Cons ution, but lower courts routinely interpret the Cons ution. One need only think of recent lower court decisions concerning President Trump’s order to temporarily bar persons from certain countries from entering the United States. See, e.g., Int’l Refugee Assistance Project v. Trump, 265 F. Supp. 3d 570, 602 (D. Md. 2017) (noting that “courts can and do review both cons utional and statutory challenges to the substance and implementation of immigration policy”).
Second, one will look in vain at Article III to find any language that gives the Supreme Court “exclusive authority” to interpret the Cons ution.
Third, once again, the General cites to sources that cannot be independently confirmed. For example, he asserts that the Supreme Court has interpreted the Cons ution, inter alia, “based upon . . . historic intent as confirmed by public records.” Yet, he cites not one example for the reader to check. An example or two would be very helpful and doubtless strengthen his argument.
Our Supreme Court established a 3 part test for determining if a government action complies with 1st Amendment separation of religion and government: (1) it must have a secular purpose; (2) it cannot advance or inhibit religion; and (3) there must be no entanglement between government and religion. If these cons utional requirements are met, the action conforms to 1st Amendment separation of church and state, and is lawful. If all are not met, the action is uncons utional and unlawful. Lemon vs Kurtzman, 91 Supreme Court [sic] 2105 (1971).
COMMENT. Although the three-part test in Lemon does exist, the test is infrequently used today and appears to be increasingly disfavored (though, admittedly, it has not yet been overruled). Since 1971, the Supreme Court has dealt with numerous cases where the Lemon test could have been applied, but the Supreme Court chose another test to resolve the issues at hand. In fact, I am aware of seven Justices of the Supreme Court who have criticized the test, strongly suggesting that its continued viability may be short-lived:
Justice Scalia: McCreary Cty. v. ACLU, 545 U.S. 844, 890 (2005) (Scalia, J., dissenting) (“[A] majority of the Justices on the current Court (including at least one Member of today’s majority) have, in separate opinions, repudiated the brain-spun ‘Lemon test’ that embodies the supposed principle of neutrality between religion and irreligion.”); Bd. of Educ. v. Grumet, 512 U.S. 687, 751 (1994) (Scalia, J. dissenting) (“The problem with (and the allure of) Lemon has not been that it is ‘rigid,’ but rather that in many applications it has been utterly meaningless, validating whatever result the Court would desire.”); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring) (“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, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. . . . Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart . . . , and a sixth has joined an opinion doing so. The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will.”); Lee v. Weisman, 505 U.S. 577, 644 (1992) (Scalia, J., dissenting) (“The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, and the interment of that case may be the one happy byproduct of the Court’s otherwise lamentable decision.”)
Justice Thomas: Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 565 U.S. 994, 997 (2011) (Thomas, J., dissenting) (“Our jurisprudence provides no principled basis by which a lower court could discern whether Lemon/endorsement, or some other test, should apply in Establishment Clause cases. Some of our cases have simply ignored the Lemon or Lemon/endorsement formulations.”)
Chief Justice Rehnquist: Van Orden v. Perry, 545 U.S. 677, 685-86 (2005) (“Over the last 25 years, we have sometimes pointed to [Lemon] as providing the governing test in Establishment Clause challenges. Yet, just two years after Lemon was decided, we noted that the factors identified in Lemon serve as ‘no more than helpful signposts.’”); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 319 (2000) (Rehnquist, C.J., dissenting) (“Lemon has had a checkered career in the decisional law of this Court. We have even gone so far as to state that it has never been binding on us.”); Wallace v. Jaffree, 472 U.S. 38, 110 (1985) (Rehnquist, J. dissenting) (“[T]he Lemon test has no more grounding in the history of the First Amendment than does the wall theory [i.e., “wall of separation between church and state”] upon which it rests. The three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service. The three-part test has simply not provided adequate standards for deciding Establishment Clause cases . . . .”)
Justice O’Connor: Bd. of Educ. v. Grumet, 512 U.S. 687, 718-19 (1994) (O’Connor, J., concurring) (“[S]etting forth a unitary test for a broad set of cases may sometimes do more harm than good. Any test that must deal with widely disparate situations risks being so vague as to be useless. . . . Lemon has, with some justification, been criticized on this score.”); Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 346 (1987) (“[T]his action once again illustrates certain difficulties inherent in the Court’s use of the test articulated in [Lemon]. . . . I [have previously] noted a tension in the Court’s use of the Lemon test to evaluate an Establishment Clause challenge to government efforts to accommodate the free exercise of religion. . . .”)
Justice Kennedy: Cty. of Allegheny v. ACLU, 492 U.S. 573, 656-57 (1989) (Kennedy, J., concurring) (“Persuasive criticism of Lemon has emerged. Our cases often question its utility in providing concrete answers to Establishment Clause questions, calling it but a ‘helpful signpos[t]’ or ‘guidelin[e]’ to assist our deliberations rather than a comprehensive test.”)
Justice Burger: Aguilar v. Felton, 473 U.S. 402, 419 (1985) (“I share JUSTICE WHITE’s concern that the Court’s obsession with the criteria identified in [Lemon], has led to results that are ‘contrary to the long-range interests of the country.’”); Wallace v. Jaffree, 472 U.S. 38, 89 (1985) (Burger, J. concurring) (“The Court’s extended treatment of the ‘test’ of [Lemon], suggests a naive preoccupation with an easy, bright-line approach for addressing cons utional issues. We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide ‘signposts. . . .’ [O]ur responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion.”)
Justice White: Roemer v. Board of Public Works, 426 U.S. 736, 768-69 (1976) (White, J., concurring) (“The threefold test of Lemon imposes unnecessary, and, as I believe today’s plurality opinion demonstrates, superfluous tests for establishing ‘when the State’s involvement with religion passes the peril point’ for First Amendment purposes. . . .”); Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 820 (1973) (White, J., dissenting) (“I am quite unreconciled to the Court’s decision in [Lemon]. I thought then, and I think now, that the Court’s conclusion there was not required by the First Amendment and is contrary to the long-range interests of the country.”)
Yet General Compere maintains:
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