Dispatches from the Creation Wars

A follow up on my earlier post about the equal access case involving Good News Club and access to a school take home flyer program. Marci Hamilton, a respected legal scholar from Yeshiva University, asks an interesting question:

How does one square this decision with the 4th Cir’s willingness to permit the Wiccan woman to be excluded from delivering prayers at city council meetings? I’m blanking on the name of the latter case, but it would seem that equality is at issue in both cases, and the results would seem at first blush in conflict with each other.

A very intriguing question. The case she is referring to is Simpson v Chesterfield County Board of Supervisors, decided just last year by this same 4th circuit court of appeals (though different judges). That case involved the board of supervisors inviting local clergy to deliver an invocation prior to their meetings, but refusing to allow a Wiccan priestess to participate. The district court ruled in her favor, but the appeals court reversed and ordered the lower court to dismiss the case. The answer to her question is: the court never even considered the public forum question in Simpson.

In Simpson, the appeals court looked solely at Marsh v Chambers as the controlling precedent. Marsh is a ruling that upheld the right of the Nebraska legislature to have clergry say prayers at the start of their sessions, so it’s certainly on point. The plaintiffs never even raised the issue of viewpoint discrimination, despite the fact that the board of supervisors had clearly established a limited public forum and thus should be bound by the same standards found in the previous precedents in that area of the law (see the previous post linked to above for a clear description of those standards).

Is there a conflict? Clearly so. And the reason is because the Marsh ruling lacks a coherent legal standard. Rather than offer a textual or structural analysis, the Court simply pointed to history and tradition as a justification for the policy. So while it may be on point, this precedent stands as a particularly narrow and unprincipled exception to other precedents where the logic is far more coherent and inescapable. Clearly, the board of supervisors have established a limited public forum. Just as clearly, multiple precedents forbid them from engaging in viewpoint discrimination when deciding who has access to that forum.

In the Lamb’s Chapel case, one of the seminal equal access cases, Justice Scalia offered a now-infamous concurring opinion, joined by Justice Thomas, in which he criticized the court’s inconsistent use of the Lemon test, a test he thinks should be scrapped completely. It’s worth quoting both for its vivid metaphors and its wry wit:

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. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. 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 (the author of today’s opinion repeatedly), 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. See, e. g., Lynch v. Donnelly, (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

He declined to apply the Lemon test, of course, but joined the majority opinion as to the result. And he specifically cites Marsh as a ruling that did not apply the Lemon test. But instead of Lemon, the Marsh ruling merely applied a vague “history and tradition” test. I’m going to suggest that the history and tradition test is just as much a ghoul from the late night horror movie show. In cases where the court cannot uphold a practice that they wish to uphold without overturning lots of precedents that they don’t want to overturn – the pledge of allegiance case, “in god we trust” on money, legislative prayers, some ten commandments displays – they fall back on the history and tradition exception to those rulings.

They did so in Marsh and they did so in Van Orden v Perry, the Texas ten commandments case where they essentially said that since the display had been there for 40 years and no one complained, it’s okay (simultaneously, they struck down a similar display in McCreary because it was relatively new and had no such history and tradition). All of this leaves quite a mess in our establishment clause jurisprudence. Scalia rightfully notes this incoherence, which he complains about when the case comes out not to his liking, but joins in aiding when it comes out the way he wants. He’s clearly correct about the Lemon test being a convenient ghoul brought out to scare the kids; he just seems unaware of that ghoul’s “history and tradition” brother lurking in his own closet.


  1. #1 NBarnes
    August 11, 2006

    Do you really believe that Scalia is unaware of the History and Tradition zombie? I find it much easier to believe that he knows full well of it, but unlike Lemon, he likes this particular ghoul and wants to keep it around.

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