• Jonathan Blake is a second year day student and Senior Editor of the Federalists’ Paper.

    If you were in Professor McNeil’s legal writing class last year, you, like me, probably found the Supreme Court’s Establishment Clause jurisprudence to be quite confusing.  The recent opinion issued by U.S. District Court Judge Graham in the American Civil Liberties Union of Ohio, Inc. v. Capitol Square Review and Advisory Board (Case No. C2-97-863) (hereafter ACLU v. CSRAB) case is very interesting.  First, Professor Looper-Friedman was a Plaintiffs’ witness (you will have to ask her about it, I did not read the transcript), and second, the holding is a very unique one.  Though many courts cite to the authority that Judge Graham relies so heavily on, few, if any, have interpreted it quite as broadly.  Though I agree with the outcome of the case, I differ as to the extent to which he expands the holding in Marsh v. Chambers, 463 U.S. 781 (1983).  This analysis will provide further discussion in the area that he placed most importance: (1) the unique holding of the Supreme Court in Marsh v. Chambers; and (2) in reliance on this case, the exemption from using the very confusing and ever-changing, Lemon test.

    Briefly, the facts of the case are these: the Plaintiffs, the American Civil Liberties Union of Ohio, Inc. (ACLU) and an individual Ohio taxpayer (who happens to be a reverend), seek to prevent the Defendants, Capitol Square Review and Advisory Board (CSRAB) and the State of Ohio, from: (1) further use of the quote “With God All Things Are Possible” as the official motto of the State; and (2) using public appropriated funds to inscribe the motto on Capitol Square in downtown Columbus.  Ultimately, of course, the issue turns on whether the motto is constitutional.  Judge Graham held in favor of the State.

    From 1971 to 1992, the Supreme Court decided 31 Establishment Clause cases, only once did the Court not rely on the so-called Lemon test.  See Lemon v. Kutzman, 403 U.S. 602 (1971) (The Lemon test has three prongs: (1) there must be a secular purpose; (2) its principle of primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster an excessive government entanglement with religion.).  The Supreme Court in Marsh, based its conclusion specifically “on the historical acceptance of the practice,” rather than applying the Lemon test.  See Edwards v. Aguillard, 482 U.S. 578 (1987).  The Marsh Court held that Nebraska’s century old practice of opening legislative sessions with prayer is not a violation of the Establishment Clause.  The United States Supreme Court, as did Judge Graham, noted that its own sessions opened with the bailiff announcing “God Save the United States and this Honorable Court.”  Instead of the Lemon test, the Court considered the framers’ intent in drafting the Establishment Clause; in particular, the Court observed that the First Congress authorized the appointment of paid chaplains three days before the final agreement was reached on the language of the Bill of Rights.

    Judge Graham feels that the Ohio state motto is governed by the holding in Marsh and, accordingly, is exempt from scrutiny via the Lemon test.  The ACLU argues that Marsh is specific to those practices established “at or before the foundation of the republic.” ACLU v. CSRAB (Case No. C2-97-863) p. 13.  Judge Graham points out that Marsh cannot be read in that light because Nebraska was not admitted to the Union until 1867.  However, Ohio’s current state motto has only been in existence for a little over 40 years.  Depending on how broad or narrow you read Marsh, will result in whether or not you agree with Judge Graham’s decision.  Though I take a narrower reading of Marsh in respect to practices sanctioned by history and ubiquity (a theory often referred to as “Ceremonial Deism”), I think the intent of the drafters, discussed in Marsh, is credence enough to sustain the motto (40 years just does not seem comparable to that of the Nebraska legislature’s century-old practice and the age of some of the other mottoes, including “In God We Trust,” discussed in the decision.).  The intent of the drafters was not to exclude religion from government (to be differentiated from “endorsing” religion).

    I think it is for good reason that Judge Graham avoided relying on the Lemon test (though he did discuss and apply the Lemon and endorsement tests).  There has been much confusion, from the Supreme Court to the Sixth Circuit, regarding the Lemon test.  Courts differ on the proper application, interpretation, and even whether the Lemon test is the appropriate evaluator in Establishment Clause jurisprudence.

    It was thought that the Lemon test found its final resting place in the Supreme Court’s 1995 opinion in Capitol Square Review and Advisory Bd. v. Pinette, 115 S.Ct. 2440 (1995) (This case arouse out of the Sixth Circuit involving the Ku Klux Klan placing a cross, ironically here too, in Capitol Square).  Justice Scalia stated, in the opinion of this Court, that only the “endorsement test” should be used in Establishment Clause jurisprudence.  See Pinette, 115 S.Ct. at 2440; see also Lynch v. Donnelly, 465 U.S. 668 (1984) (Justice O’Connor proposed the endorsement test in Lynch v. Donnelly: a governmental action violates the Establishment Clause if it creates a perception in the mind of a “reasonable observer” that the government is either endorsing or disapproving of religion. See id. at 668.).

    However, the Court, in its most recent examination, again muddied the waters by reviving and modifying the Lemon test.  See Agostini v. Felton, 117 S.Ct. 1997 (1997); see also Lamb's Chapel v. Ctr. Moriches Sch. Dis., 508 U.S. 384, 398 (1993) (Justice Scalia likens the Lemon test to a "ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.").  Justice O’Connor, in the opinion of the court, indicated her unwillingness to extend the endorsement test to challenges of government funding of secular teachers in parochial schools.  She again modified the Lemon test, this time by collapsing the “effect” and “entanglement” prongs into a single prong: “the factors we use to assess whether an entanglement is ‘excessive’ are similar to the factors we use to examine ‘effect.’”  Agostini, 117 S.Ct. at 1997; see Allegheny v. ACLU, 492 U.S. 628 (1989) (She modified the test for the first time in Allegheny v. ACLU by incorporating the endorsement test into the first two prongs.).  Interestingly, Judge Graham does not discuss a modified Lemon test, only the original three-pronged analysis.

    The Supreme Court’s mixed signals have been mirrored in the Sixth District courts’ jurisprudence. See Granzeier v. Middleton, 955 F.Supp. 741 (E.D. Ky. 1997) (the court here followed Pinette); see also Chaudhuri, 130 F.3d 232 (6th Cir. 1997) (the court here followed Agostini).  So it seems that Judge Graham, perhaps wisely, avoided a very unstable, complicated area of this jurisprudence.  It is still curious that he did not explore this area more fully.
 Judge Graham, quoting then-Chief Justice Burger from Marsh, stated what I think is the strongest support for the motto:
 

Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns.  In this context, historical evidence sheds light on not only what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress--their actions [in appointing paid chaplains three days after the final agreement was reached on the language of the Bill of Rights] reveal their intent.

ACLU v. CSRAB p. 9 (quoting Marsh, 463 U.S. at 790).  Accordingly, it was never the intent of the drafters to strip the government of religious connotation altogether.

    In conclusion, I differ with Judge Graham in that I feel this case does not fall neatly within the realm of Marsh.  I do find the Marsh Court’s discussion of the intent of the drafters to be convincing.  I think that is enough support for the motto.  The tests in the area of Establishment Clause jurisprudence have become so confusing, distorted, and malleable that it is questionable whether they still serve as valuable “signposts” in evaluating the questioned conduct.  That is not to say that a consistent test is not needed in aiding in this difficult evaluation.  I think the High Court has placed too much emphasis on the tests and not enough on the true meaning of the constitution and the intent of the drafters.