Lessons for Religious Liberty Litigation from Kentucky
Jennifer Anglim Kreder, Lessons for Religious Liberty Litigation from Kentucky
Lessons for Religious Liberty Litigation from Kentucky
Jennifer Anglim Kreder 0
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Lessons for Religious Liberty Litigation
Jennifer Anglim Kreder*
* © Associate Dean for Faculty Development and Professor of Law, Salmon P.
Chase College of Law, Northern Kentucky University. Prior to entering academia, Professor
Kreder was a federal law clerk and an associate at Milbank, Tweed, Hadley & McCloy,
LLP, in New York, where she worked primarily on Holocaust negotiations, art disputes, and
securities class actions. She teaches property, civil procedure, pretrial litigation, cultural
property law, art law, and myriad other courses. She recently has served as an expert
witness and subsequently performed legal drafting for American Atheists, Inc. in some of
the cases discussed herein, but the views expressed herein, including those previously stated
in case documents, are solely her own and in no way represent those of the organization.
She would like to thank Professor Douglas Laycock, Professor Jennifer Kinsley, Professor
Caroline Corbin, Professor Jessie Hill, Professor John Bickers, Professor John Valauri,
Professor Carol Furnish, Edwin Kagin, Pamela Whissel and Ben Bauer for their insight into
First Amendment issues, and she would like to acknowledge her dedicated Research
Assistants Liz Dalton and Erica Deters and students Dean Bacovin, Cooper Bowen, Sandra
Eisman-Harpen, Spencer Merk, Sam Flynn, Nathan Lennon, and Michele Metzler for their
Since the horrible events of September 11, 2001, many deeply
convicted and well-meaning Christians have been misled to fear that there
is a war on religion being waged by other Americans, and even by our
President, in addition to the war being waged against our nation by actual
terrorists.1 Acting out of this fear and the belief that the “Great
Commission” requires Christians to spread the word of God,2 some
evangelical and fundamentalist Christians have begun injecting Christianity
into government in unconstitutional ways. These “organized act[s] of civil
disobedience” are, consistent with their religious ideology, abundantly
righteous in their view.3
To physically memorialize their victories and to reach youth and future
generations in this perceived war in ways thus far prohibited by the
Supreme Court’s First Amendment jurisprudence, modern religious
ideologues seek to call into question the Supreme Court’s Establishment
Clause jurisprudence en masse. As one 2005 article noted of the
Notwithstanding Supreme Court rulings suggesting that religious
symbols standing alone on government property are unconstitutional, a
number of organizations, the most well-known of which are the Family
Research Council and Focus on the Family, have mobilized support for
defending Ten Commandments displays on government property.
Lawmakers in Kentucky and Indiana have made a concerted effort to
post Ten Commandments in schools. Indeed, Justice Roy Moore built
his career on posting the Ten Commandments in courthouses—a career
that even contemplated a third-party run for the presidency.4
Roy Moore was recently re-elected as the Chief Justice of the Supreme
Court of Alabama,5 but prior to taking the office for a second time, he was
ousted from the bench after refusing to comply with a federal order to
remove a massive Decalogue he installed in the courthouse, which also
resulted in a legal fight costing Alabama taxpayers over $550,000.6 He
became the President—and remains President Emeritus—of the Foundation
of Moral Law.7 The three-fold mission of the foundation was stated openly
in 2004: “(
) defend the ‘right to acknowledge Almighty God’ (including
the defense of Roy Moore); (
) ‘educate the public about the U.S.
Constitution and the Godly foundation of the United States of America; and
) ‘reestablish society with good morals and values as set forth in the Holy
Bible.’”8 It remains largely the same today.9
The legal strategy of right-leaning evangelicals and fundamentalists
seems to be to outnumber and outlast their opponents. Presumably, those
improperly using government to perpetuate religiosity hope they will buy
time to persevere over those few with the litigation budget, time, and
endurance to challenge the religious displays in court one by one. If those
opposing them are forced to fight each Establishment Clause violation on a
micro, case-by-case level, they eventually will find themselves like the
plaintiffs in Van Orden v. Perry,10 who were faced with multitudes of
monuments that the Fraternal Order of Eagles successfully maneuvered to
have installed on government property forty years earlier.11 The sheer
volume of the displays makes them difficult to attack on an individual
basis. And, over time, courts tend to value the historical nature of a
longstanding monument over its religiosity,12 further entrenching such displays
and insulating them from constitutional challenge.
Although it would be difficult—if not impossible—to prove
empirically, the alienation of nonbelievers from modern American politics
was likely fated by the enthusiastic injection of God into politics to
distinguish America from the atheist Soviet bloc during the Cold War.13
Litigating against the exclusion of nonbelievers and atheist messages from
governmental religious displays unfortunately risks extending some of the
Supreme Court’s less favorable precedent14 despite today’s significantly
more pluralistic society.15 On the other hand, the potential consequences of
failing to challenge governmental endorsement of religion are significant:
the promotion of God via American politics may become increasingly
mainstream and therefore legitimized over the long run. Nonbelievers may
become even more ostracized in American society, particularly in the
heartland and other areas where religion is deeply entrenched.16 The
balance of these risks may soon tip to one side or the other; the Supreme
Court recently granted certiorari to decide whether the practice of the
Clause was not violated by monument display).
11. Jess Bravin, When Moses’ Laws Run Afoul of the U.S.’s, Get Me Cecil B. deMille,
WALL ST. J., Apr. 18, 2001, at A1.
12. See infra Part I(B).
13. See FRANCOISE CHAOY, THE INVENTION OF THE HISTORIC MONUMENT (Lauren M.
O’Connell, trans., Cambridge Univ. Press 2001) (describing historical role monuments play
in shaping society and history); Cass R. Sunstein, On the Expressive Function of Law, 144
U. PA. L. REV. 2021, 2024–26 (1996) (describing how legal documents and statements
contribute to social norms, including faith).
14. See infra Part I.
15. See generally B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial
Deism and Change in Meaning Over Time, 59 DUKE L.J. 705 (2010); Frank Newport, This
Christmas, 78% of Americans Identify as Christian, GALLUP (Dec. 24, 2009),
(discussing that the 1950s were “a very religious decade, based on Gallup indicators.”).
16. See MARCI A. HAMILTON, GOD V. THE GAVEL: RELIGION AND THE RULE OF LAW
(2005) (discussing lawyer-scholar’s evolution of thoughts about religious jurisprudence);
Douglas Laycock, Voting with Your Feet Is No Substitute for Constitutional Rights, 32
HARV. J.L. & PUB. POL’Y 29, 39–40 (2009) (describing violence, intimidation and
harassment of non-Christians in Santa Fe, Texas). But see Marc O. Girolami, Recoiling from
Religion, 43 SAN DIEGO L. REV. 619 (2006) (critiquing Hamilton’s book).
Greece, New York, town board of opening its meetings with a prayer from
the “chaplain of the month” violates the Establishment Clause.17
To be sure, most litigation in the religious liberty arena has focused on
the Establishment Clause. Reviewing the complaints filed in such litigation
shows that the cases start out by at least implicating doctrines other than the
Establishment Clause, but in the end the Establishment Clause remains the
focus of the litigation and the resulting judicial opinion.18 At its heart,
however, such litigation is about discrimination between competing points
of view and the exclusion of non-mainstream or counter-cultural groups,
and many of the recent cases concern ostracism of nonbelievers.19
This Article posits that for those seeking to remedy the
unconstitutional ostracism of nonbelievers and others, future litigation
should develop new, progressive theories. Part I analyzes the current
prospects of Establishment Clause litigation for nonbelievers and others
seeking to utilize the courts to uphold the church-state divide and
demonstrates why a new path is necessary. Part II demonstrates that legal
theories beyond the Establishment Clause, such as the Equal Protection
Clause of the Fourteenth Amendment (or Equal Protection principles
inherent in the Fifth Amendment), and the Religious Test Clause of Article
VI, § 3, and their state constitutional corollaries, should be explored as a
basis for challenging the injection of religion into government today. This
Article concludes by calling for groups and individuals seeking to challenge
the injection of God into American politics and civic life to brainstorm and
share strategies, including by responding to this Article, to develop new,
stronger legal theories to support such litigation.
II. Establishment Clause Litigation Prospects for Nonbelievers
The Establishment Clause of the First Amendment provides that
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . .”20 “The underlying purpose of the
First Amendment’s Religion Clauses is to assure the fullest possible scope
of religious liberty and tolerance for all, to avoid the religious divisiveness
that promotes social conflict, and to maintain the separation of church and
state.”21 The Founders maintained a heightened sensitivity to the divisive
potential of religion in the new republic, as reflected upon by the Supreme
Court in a landmark 1989 case, County of Allegheny v. American Civil
Liberties Union of Pittsburgh:
This Nation is heir to a history and tradition of religious diversity that
dates from the settlement of the North American Continent. Sectarian
differences among various Christian denominations were central to the
origins of our Republic. Since then, adherents of religions too numerous
to name have made the United States their home, as have those whose
beliefs expressly exclude religion.22
The County of Allegheny majority opinion held that a courthouse
crèche would need to be removed, which would “deprive Christians of the
satisfaction of seeing the government adopt their religious message as their
own, but this kind of government affiliation with particular religious
messages is precisely what the Establishment Clause precludes.”23 On the
other hand, not allowing governmental affiliation with a particular religious
viewpoint does not equate to hostility toward religion. For example, three
concurring Justices wrote:
The suggestion that the only alternative to governmental support of
religion is governmental hostility to it represents a giant step backward
in our Religion Clause jurisprudence. Indeed in its first contemporary
examination of the Establishment Clause, the Court, while differing on
how to apply the principle, unanimously agreed that government could
not require believers or nonbelievers to support religions.24
20. U.S. CONST. amend. I.
Van Orden v. Perry, 545 U.S. 677, 678 (2005).
22. Cnty. Of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 589 (1989)
(holding that a display of a crèche violated the establishment clause and that a display of
Menorah next to a Christmas tree did not have an unconstitutional effect of endorsing
Christian and Jewish faiths). For more historical discussion, see Response in Opposition to
The United States’ Motion to Dismiss, Am. Atheists v. Werfel, No. 2:12-cv-00265 (E.D. Ky.
Aug. 6, 2013), ECF No. 22, at 26-28, 31-32.
23. Id. at 601 n.51. This Part of the Court’s opinion was authored by Justice
Blackmun and joined by Justices Brennan, Marshall, Stevens, and O’Connor.
24. Id. at 651 (partial concurrence and dissent of Brennan, J., Marshall, J., and
Stevens, J.) (citations omitted).
It is commonly accepted that the Establishment Clause prohibits
government from endorsing, giving favoritism, or promoting one religion
over another.25 In light of the fact that our political history is rife with
references to God, many dispute the Jeffersonian conception of a
constitutional wall between church and state that should prohibit any
governmental invocation of deistic belief.26 Even for those who reject the
Jeffersonian view, it is hard to dispute that “[o]ne of the main goals of the
Establishment Clause is to protect religious minorities like nonbelievers.”27
At stake in current litigation brought by nonbelievers is the scope of the
Establishment Clause’s protection of those who stand in opposition to
organized religion, a group of Americans maligned in McCarthy-like
fashion as stereotypically “un-American.”28 According to Professor
Caroline Mala Corbin, an expert in the Establishment Clause and
nonbelievers, “[t]he perpetuation of these stereotypes also undermines the
liberty of nonbelievers by making them less willing, or even afraid, to
follow the dictates of their conscience.”29
Justice O’Connor was the most outspoken member of the Court in
stating plainly and often that the Establishment Clause does indeed prevent
favoritism of deistic belief over non-belief, but she was not the only one to
adopt this position. The following are excerpts in reverse chronological
order from the Supreme Court’s jurisprudence most relevant to this issue:
• “Our institutions presuppose a Supreme Being, yet these institutions
must not press religious observations upon their citizens.” Van Orden v.
Perry, 545 U.S. 677, 683 (2005) (plurality opinion, authored by Chief
Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas).
• The First Amendment “guarantee[s] religious liberty and equality to
‘the infidel, the atheist, or the adherent of the non-Christian faith such as
Islam or Judaism.’” Cnty. of Allegheny v. Am. Civil Liberties Union, 492
U.S. 574, 590 (1989) (majority opinion, authored by Justice Blackmun,
joined by Justices Brennan, Marshall, Stevens, and O’Connor).
• “[G]overnment cannot endorse the religious practices and beliefs of
some citizens without sending a clear message to nonadherents that they
are outsiders or less than full members of the political community . . .”
Cnty. of Allegheny, 492 U.S. at 627 (O’Connor, J., concurring).
• “[T]he Court has unambiguously concluded that the individual
freedom of conscience protected by the First Amendment embraces the
right to select any religious faith or none at all.” Wallace v. Jaffree, 472
U.S. 38, 52-53 (1985) (majority opinion, authored by Justice Stevens,
joined by Justices Brennan, Marshall, Blackmun, and Powell).
• “Government in our democracy, state and national, must be neutral in
matters of religious theory, doctrine, and practice. It may not be hostile
to any religion or to the advocacy of nonreligion; and it may not aid,
foster, or promote one religion or religious theory against another or
even against the militant opposite. The First Amendment mandates
governmental neutrality between religion and religion, and between
religion and nonreligion.” Epperson v. State of Ark., 393 U.S. 97,
10304 (1968) (majority opinion, authored by Justice Fortas, joined by Chief
Justice Warren and Justices Douglas, Brennan, White, and Marshall).
• “The fullest realization of true religious liberty requires that
government . . . effect no favoritism among sects or between religion
and nonreligion.” Abington Sch. Dist. v. Schempp, 374 U.S. 203, 305
(1963) (Goldberg, J., concurring, joined by Justice Harlan).
• “In the words of Jefferson, the clause against establishment of religion
by law was intended to erect ‘a wall of separation between Church and
State.’” Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 16 (1947)
(majority opinion, authored by Justice Black, joined by Chief Justice
Vinson and Justices Reed, Douglas, and Murphy).
Lower federal courts have struggled to apply the Supreme Court’s
Establishment Clause jurisprudence ever since the Court issued its opinion
in Everson v. Board of Education in 1947.30 Even Supreme Court Justices
admit that the Court has generated inconsistent, oftentimes conflicting,
standards by which to apply the Establishment Clause.31 The remainder of
this Part will seek to contextualize these excerpts within a fuller scope of
the Court’s religious liberty jurisprudence, broken into the following
subparts: A. School litigation, B. Religious displays litigation, C. Ceremonial
deism, and D. Governmental speech. Part II demonstrates that new legal
theories beyond the Establishment Clause are necessary for nonbelievers
and others seeking to challenge the improper injection of religion into
government and suggests what those new avenues might be.
A. School Litigation
Decided in 1947, Everson v. Board of Education was the Supreme
Court’s first major Establishment Clause decision.32 In that case, the Court
held that a New Jersey program that supplied transportation to nonpublic
school children who attended parochial schools did not violate the
Establishment Clause.33 In Everson, the Court described the scope of the
Establishment Clause’s prohibitions as follows:
The “establishment of religion” clause of the First Amendment means at
least this: Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid all religions,
or prefer one religion over another. Neither can force nor influence a
person to go to or remain away from church against his will or force him
to profess a belief or disbelief in any religion. No person can be
punished for entertaining or professing religious beliefs or disbeliefs, for
church attendance or non-attendance. No tax in any amount, large or
small, can be levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to teach
or practice religion. Neither a state nor the Federal Government can,
openly or secretly, participate in the affairs of any religious
organizations or groups and vice versa.34
This decision was followed by many more cases which attempted to
delineate the precise extent of religious activity that is permissible in
schools. Categorically speaking, the Supreme Court has not found the
Clauses, 8 U. PA. J. CONST. L. 725 (2006) (describing the problems with the Establishment
Clause and the resulting inconsistencies, noting that “[a]t some point during the last ten
years, one or more of the nine Justices have articulated ten different Establishment Clause
32. Martha McCarthy, Religion and Education: Whither the Establishment Clause?,
75 IND. L.J. 123, 125 (2000) (noting that schools have become the battleground for some of
the most notable Establishment Clause disputes).
33. Id. at 126 (mentioning that the Everson court was unanimous in endorsing such a
posture between church and state).
34. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947).
establishment of voucher programs or bus transportation in support of
school choice to amount to per se excessive entanglement between church
and state; nor has the Supreme Court drawn a clear line demarcating
acceptable generic educational support from impermissible endorsement of
religious education.35 Its opinions in this area have been limited to very
fact-specific issues, leaving lower courts to review the plethora of school
choice challenges on a case-by-case, oftentimes piecemeal, basis.36 In
contrast, some state Supreme Courts have found voucher programs
unconstitutional under their respective state constitutions.37
The Court sought to delimit the range of permissible governmental
support for parochial schooling in Lemon v. Kurtzman.38 At stake in Lemon
was a Pennsylvania statute authorizing the State to provide to nonpublic
schools reimbursement for their expenses on teachers’ salaries, instructional
materials, and books used for certain secular purposes. The Court found
that this arrangement constituted excessive entanglement between church
and state. This opinion generated the “Lemon Test” so often repeated in
Establishment Clause litigation and so often criticized in the academic
literature.39 Under the oft-cited Lemon Test, for a governmental practice
that implicates religion to be permissible under the Establishment Clause, it
must meet three requirements. First, it must have a secular purpose.
Second, its principle or primary effect must be one that neither advances
nor inhibits religion. Third, it must not foster an excessive government
entanglement with religion.
School vouchers have not been the only area of school litigation
involving the Establishment Clause. The Court has found that when
children go to school, including school functions like basketball games or
graduation ceremonies, it is impermissible to inject religious components
into these extracurricular activities.40 This includes prayer, a moment of
silence, the teaching of religion in schools, or invocation.41
For example, in Lee v. Weisman, the Court was faced with the issue of
whether principals who invited members of the clergy to pray at the
graduation ceremonies for middle school and high schools violated the
Establishment Clause.42 Justice Kennedy’s majority opinion rejected what
is referred to as the Non-Endorsement Test, discussed in Part I(B), infra,
and suggested that, in his view, whether a practice should be deemed
unconstitutional under the Establishment Clause should depend on whether
there is direct or indirect coercion to participate in what is essentially a
religious ritual.43 The Court framed the issue of the case as “. . . whether
the exposure to the government’s religious expression is voluntary, and
whether the governmental practice coerces religious belief.”44 The Court
reasoned that, due to the circumstances of high school life, having a prayer
at graduation ceremonies was impermissibly coercing participation in
40. See Ronsenhouse, supra note 36, at 573.
41. E.g., Cnty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 603 (1989)
(noting that in Marsh the Court recognized that “contemporary legislative prayers that have
the effect of affiliating the government with any one specific faith or belief” are
42. See Lee v. Weisman, 505 U.S. 577 (1992) (holding that a school could not provide
for “nonsectarian” prayer to be given by clergymen selected by the school); see also Stone v.
Graham, 449 U.S. 39 (1980) (per curiam), (prohibiting recitation of The Lord’s Prayer in
school each morning); Engel v. Vitale, U.S. 421, 436 (1962) (finding prayer in school
unconstitutional); McCollum v. Bd. of Educ., 333 U.S. 203 (1948) (holding that teaching of
religion in schools violated the Establishment Clause).
43. Robert A. Holland, A Theory of Establishment Clause Adjudication:
Individualism, Social Contract, and the Significance of Coercion in Identifying Threats to
Religious Liberty, 80 CAL. L. REV. 1595, 1627 (1992) (“Justice Kennedy rejected the
endorsement test entirely and proposed that a violation of the Establishment Clause should
depend on a showing of some kind of coercion. . . . ”).
Lee, 505 U.S. at 580.
45. Id. at 594 (acknowledging that the government may no more use social pressure to
enforce orthodoxy than it may use more direct means).
The Court thus analyzed the reach of the Establishment Clause under a
coercion principle, commonly referred to as the Non-Coercion Test.46 The
coercion principle posits that the State cannot give the impression that it
officially endorses any particular religious belief or organization. However,
the Court did not set forth a definition for what would be considered
coercion to participate or even whether the existence of coercion would be
assessed objectively or subjectively.47 Expanding the Non-Coercion Test or
employing it more frequently could lead to a more permissive standard of
There is potential for more litigation in this area, especially arising out
of Kentucky and Mississippi. Both states have a long history of
Establishment Clause litigation and have continued to enact laws and pass
resolutions that clearly defy Supreme Court jurisprudence or are intended to
test its limits. For example, a 2000 Kentucky law48 encourages school
boards to inject The Lord’s Prayer with the morning Pledge of Allegiance
in direct contravention of Stone v. Graham,49 which also arose out of a
Kentucky bill. That bill was passed by the spouse of the main sponsor of
unconstitutional religious legislation and resolutions in the Commonwealth
ever since then, Representative Tom Riner.50 An earlier Kentucky bill,
enacted in 1990, authorized teachers covering the topic of evolution to also
teach creationism and “read such passages in the Bible as are deemed
46. Eric G. Anderson, Protecting Religious Liberty Through the Establishment
Clause: The Case of the United Effort Plan Trust Litigation, 2008 UTAH L. REV. 739, 764
47. See Holland, supra note 43, at 1601 (“[The court] felt no need to articulate a
specific definition of coercion for future inquiries”).
KY. REV. STAT. ANN. § 158.175 (West 2012).
49. Stone v. Graham, 449 U.S. 39 (1980) (holding that a Kentucky statute requiring
posting of the ten commandments on the walls of a public school classroom had a
preeminent purpose which was plainly religious in nature).
50. See infra Part I(B)(
). Similarly, a 2000 resolution was passed “commending
those churches and religious organizations that pray and fast for the leaders of the
Commonwealth and the Nation.” H.R. Res. 191, 2000 Leg., Reg. Sess. (Ky. 2000) (adopted
Apr. 14, 2000), available at http://www.lrc.ky.gov/recarch/00rs/hr191.htm. The Kentucky
legislature also recently overrode the governor’s veto that was premised on significant
constitutionality concerns, to pass a Religious Freedom Restoration Act clone law. The law
was set to take effect in June 2013. See generally KY RELIGIOUS FREEDOM BILL,
Litigation challenging legislation requiring religious training materials and the display of a
permanent religious plaque at the Kentucky Office of Homeland Security recently ended
unsuccessfully for American Atheists, Inc. and the named plaintiffs that challenged it. See
Am. Atheists, Inc. v. Ky. Office of Homeland Sec., 133 S.Ct. 1582, 185 L.Ed. 2d 577 (Mar.
18, 2013), cert. denied.
necessary for instruction on the theory of creation . . . .”51 Politically, it is
seemingly impossible for politicians to resist such clearly unconstitutional
antics.52 Mississippi has a similar track record and recently passed new
legislation to attempt to overcome its prior litigation losses to again inject
prayer into schools.53 Thus, we can look toward these two states as likely
sources of additional case-by-case litigation concerning the Establishment
Clause and schools.
B. Religious Displays Litigation
Like the provision of governmental assistance for religious schools,
the display of religious symbols on public property is often challenged
under the Establishment Clause.54 Sub-Part I(B)(
) will first lay out the
major Supreme Court cases and analytical approaches. Sub-Part (I)(B)(
will analyze the failure of the decisions based on subsequent developments
after the Court remanded one of its lead cases, McCreary County v.
American Civil Liberties Union of Kentucky,55 back to federal courts within
the Commonwealth of Kentucky. This story is not told in academic
literature but has become a rallying point for a bold civil disobedience
movement, which has captured the political processes in Kentucky, where
state judges are elected rather than appointed.56 Moreover, as relayed
below, this movement has even won significant support from multiple
51. KY. REV. STAT. ANN. § 158.177(
) (West 2012).
52. See Ian Urbina, Lawmaker in Kentucky Mixes Piety and Politics, N.Y. TIMES, Jan.
4, 2009, at A12, available at http://www.nytimes.com/2009/01/04/us/04louisville.html?_r=0
(quoting Al Cross, Director of the Institute for Rural Journalism and Community Issues,
University of Kentucky: “Politicians are afraid of attack ads that will say they voted against
God if they vote against [such] measures . . .”).
53. See Dave Bohon, Mississippi Legislature Passes School Prayer Bill, THE NEW
AMERICAN (Mar. 11, 2010), available at
http://www.thenewamerican.com/culture/faith-andmorals/item/ 14743-mississippi-legislature-passes-school-prayer-bill; Ingebretsen v. Jackson
Pub. Sch. Dist., 88 F.3d 274, 277 (5th Cir. 1996) (describing prior litigation lost by State of
Mississippi); see also, e.g., Joe Dryden, The Religious Viewpoint Antidiscrimination Act:
Using Students as Surrogates to Subjugate the Establishment Clause, 82 MISS. L.J. 127
(2013) (analyzing the new wave of attempts to inject prayer back into schools); accord,
Melissa Rogers, The Texas Religious Viewpoints Antidiscrimination Act and the
Establishment Clause, 42 U.C. DAVIS L. REV. 939 (2009).
KY. REV. STAT. ANN. § 118A.040 (West 2012); §118A.050.
federal judges within the federal courts having jurisdiction covering the
Commonwealth, causing great divisiveness within the U.S. Court of
Appeals for the Sixth Circuit. One might even go so far to say that the
movement has generated a constitutional crisis by calling into question the
legitimacy of the Court in the religious arena. Such a crisis warrants a
response by the Court, although that response may not be the one desired by
the non-believing minority and others opposed to the fundamentalist
1. Supreme Court Religious Displays Decisions
At issue in the Supreme Court’s 1984 decision in Lynch v. Donnelly58
was a government-sponsored Christmas display that potentially constituted
the endorsement of the Christian religious holiday. Each year, the City of
Pawtucket, Rhode Island, set up a Christmas display at a park owned by a
nonprofit organization.59 The display contained a variety of figures and
decorations, including a “SEASONS GREETINGS” banner, a Christmas
tree, a Santa Clause house, and candy cane-striped poles.60 The display also
contained a crèche, which included animals, shepherds, kings, a baby Jesus,
Mary, and Joseph.61 Considering the display as a whole, the Court found
that the inclusion of the crèche did not violate the Establishment Clause.62
The Court concluded there was a lack of evidence that the crèche’s
inclusion was driven by religious motives.63 Thus, the Court held that the
inclusion of the crèche had a secular purpose in the context of a generalized
holiday display and therefore did not violate the Establishment Clause.64
Justice O’Connor filed a concurring opinion setting forth what is
commonly referred to as the “Non-Endorsement Test.”65 Under the
NonEndorsement Test, a court would examine whether the practice that touches
upon religion conveys a message of endorsement or disapproval,
notwithstanding the government’s actual intention.66 If there is either a
positive or negative message conveyed, the court should conclude that the
practice violates the Establishment Clause.67
Next, in 1989, the majority opinion authored by Justice Blackmun in
County of Allegheny v. American Civil Liberties Union (Parts III-A, IV, and
V) applied the Non-Endorsement Test, stating that “[t]he Clause, at the very
least, prohibits government from appearing to take a position on questions
of religious belief or from making adherence to a religion relevant in any
way to a person’s standing in the political community.”68 The case
involved two holiday displays on public property in downtown Pittsburgh.
The first holiday display was a crèche, depicting a Christian Nativity scene
on the staircase of the Allegheny County Courthouse. The second was an
18-foot Chanukah menorah, which was immediately adjacent to a 45-foot
Christmas tree located outside the government building. The Court held
that the crèche but not the menorah or the Christmas tree had an
unconstitutional effect. The Court applied the Non-Endorsement Test to
evaluate whether the displays conveyed a message “that religion or a
particular religious belief is favored or preferred.”69 The Court stated that
“[w]hen viewed in its overall context, the crèche angel’s words endorse a
patently Christian message: Glory to God for the birth of Jesus Christ.”70
Two further cases help delineate the Supreme Court’s
NonEndorsement Test.71 Next, seemingly in response to criticism72 of the
confusing nature of its Establishment Clause, the Court granted certiorari in
two Ten Commandments cases, Van Orden and McCreary County, both of
which were decided June 27, 2005.73 The Court came to polar opposite
conclusions in each case, with the Van Orden majority opinion authored by
Justice Antonin Scalia and the McCreary County majority opinion authored
by Justice Souter. The different outcomes turned on whether the Ten
Commandments were displayed in a historic manner or whether the
government actors displaying the Ten Commandments intended to convey a
In Van Orden v. Perry, an Austin, Texas, resident had filed suit
claiming that a 6-foot-high monolith engraved with the Ten
Commandments on State Capitol grounds violated the Establishment
Clause.74 The monolith was among the 17 monuments and 21 historical
markers on the grounds.75 Declining to apply the Lemon Test, the Supreme
Court held that the Ten Commandments display did not violate the
Establishment Clause.76 In so doing, the Court recognized that the Ten
Commandments played a role in our Nation’s heritage.77 Then the Court
reasoned that the Ten Commandments, while in the presence of the other
monuments, had historical—as opposed to religious—significance.78
In contrast, in McCreary County, Ky. v. Am. Civil Liberties Union,
similarly to Lynch, the Court focused more on the intent of the county
officials displaying the Ten Commandments. The Court held that two
counties hanging a version of the Ten Commandments, known as the
“Foundations Displays,” on the walls of their respective courthouses
violated the Establishment Clause because the county politicians involved
intended to display a religious message and not a historical one.79
Unfortunately, as relayed in Sub-Parts I(B)(
) below, the Court’s
attempt to draw a flexible line in the sand has backfired by emboldening
elected state legislators and judges—and even federal judges —to defy the
Court starting immediately upon remand of McCreary County in 2005.
2. Supreme Court “Ignored” and “Flouted” Six Months After McCreary
The extraordinary litigation surrounding the Foundations Displays at
issue in McCreary County demonstrates the problem, and its after-story is
not well known despite the fact that its beginnings were reported in the New
York Times in connection with another case arising out of the injection of
74. Van Orden 545 U.S. at 682.
75. Id. at 681.
77. Id. at 688.
78. Id. at 691.
79. McCreary Cnty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 881 (2005);
see also Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (holding that Ten
Commandments displays in public classrooms violated the Establishment Clause).
God into Kentucky legislation. The New York Times reported about
Kentucky Representative Tom Riner’s mission to proselytize via legislation
in Kentucky as follows:
Tom Riner looks for God everywhere, and in places he does not find
him, he tries to put him there.
For more than 30 years, Mr. Riner’s singular devotion has been to inject
God into the public arena. . . .
“The church-state divide is not a line I see,” Mr. Riner, a Baptist
minister, said of [a] lawsuit [brought by American Atheists, Inc.].
“What I do see is an attempt to separate America from its history of
perceiving itself as a nation under God.”80
Representative Riner has led the General Assembly to pass wildly
unconstitutional religious bills and inject religious resolutions into various
bills’ histories, as relayed above.81 This sets the stage to tell the rest of the
story of the aftermath of McCreary County in the Commonwealth of
Kentucky and the U.S. Court of Appeals for the Sixth Circuit.
First, just six months after McCreary was remanded in 2005, a Sixth
Circuit panel (The Honorable Richard F. Suhrheinrich, The Honorable
Alice M. Batchelder, and The Honorable Walter Herbert Rice, a U.S.
District Court Judge sitting by designation who concurred in the result
only) seemed to defy the Court’s evaluation of the identical Foundations
Display in McCreary County: “[W]hat five justices of the Supreme Court
would include in a display commemorating Kentucky and American legal
history has no bearing on the constitutionality of the display as erected.”82
When the American Civil Liberties Union (“ACLU”) petitioned for
rehearing en banc, five judges filed a dissenting opinion from the denial of
In order to [uphold the constitutionality of the Foundations Display], the
panel was willing to deviate from the precedent of this Court . . . . In
80. Urbina, supra note 52, at A12 (also reporting that as of 2009, the Commonwealth
had spent $160,000 on this litigation and $400,000 as of 2005 on the McCreary County
81. See supra notes 48-52 and accompanying text.
82. See Am. Civil Liberties Union of Ky. v. Mercer Cnty, 432 F.3d 624, 634 n.7 (6th
Cir. 2005) (holding that the predominant purpose of the display was secular, and that the
display would not have principal or primary effect of endorsing religion).
essence, the panel announced a new rule: that an overt sectarian
legislative history is necessary, as a matter of law, before a display will
be invalidated. The panel premised this novel principle on a recent
Supreme Court holding that an avowed sectarian purpose is sufficient to
invalidate a display. Because the most charitable characterization of the
panel’s decision is that it makes an illogical inference, I respectfully
dissent from the order denying en banc rehearing by this Court.83
The dissenters continued, emphasizing that the panel “flouted” the
Supreme Court’s charge:
In short, the panel essentially ignored the Supreme Court’s
characterization of the content of the Mercer County display. The
panel flouted the Supreme Court’s charge that the reasonable
observer not be “absentminded,” and the panel viewed context as
coterminous with legislative history. Compare Mercer County, 432
F.3d at 632 (“The objective observer has no recent history of religiously
motivated governmental acts or resolutions to incorporate into the
display.”) with McCreary County, 125 S.Ct. at 2737 (“The Counties’
position just bucks common sense; reasonable observers have
reasonable memories, and our precedents sensibly forbid an observer ‘to
turn a blind eye to the context in which [the] policy arose.’”). The panel
read Mercer County’s action of quickly and exactly copying its fellow
counties’ embattled and religiously motivated display out of the
Notwithstanding the emphatic dissent to the request for an en banc
hearing, the “flouting” of the Supreme Court’s McCreary County decision
continued. In 2007, a federal district judge, also allowing the Foundations
Display in the Rowan County, Kentucky courthouse to remain on the wall,
reiterated the panel’s opinion that the Supreme Court’s McCreary County
decision “has no bearing on the constitutionality of the display as
erected.”85 And, in 2010, another Sixth Circuit judge openly exhibited
hostility towards the Supreme Court’s Establishment Clause jurisprudence
based on “the Supreme Court majority’s [purported] persistent hostility to
I cannot be too critical of my . . . colleagues who feel stare decisis
bound by the Supreme Court majority’s persistent hostility to
religion and its refusal to acknowledge the historical evidence that
religion, religious symbols, and the support of religious devotion were
of the very essence of the values the Constitution’s authors and the
ratifying legislators thought they were preserving in the language of the
The result, I fear, is that federal courts will continue to close the Public
Square to the display of religious symbols as fundamental as the Ten
Commandments, at least until the Supreme Court rediscovers the history
and meaning of the words of the religion clauses of the First
Amendment and jettisons the flawed reasoning of Lemon v.
Kurtzman. . . .87
3. Seeing the “Big Picture” from Kentucky
At some point, one seeing all of the “baffling” displays “oddly”
containing the Ten Commandments and religious texts, “given [their]
content and context, understandably throws up his hands in frustration” or
at least “would probably suspect that the Counties were simply reaching for
any way to keep a religious document on the walls of the courthouse
constitutionally required to embody religious neutrality.”88 This is
particularly true in Kentucky, after the Supreme Court remanded the
McCreary case, which arose out of a prominent, vibrant movement to post
the Ten Commandments throughout the courthouses of Kentucky, the home
of the nation’s very popular Creation Museum.89
Although stated solely in the context of the McCreary County case,
one Sixth Circuit judge seems to understand what has been happening:
[T]he fact that more time has passed since the Supreme Court decision is
meaningless in this case, because Defendants have spent the time since
the Supreme Court decision continuously seeking to accomplish their
initial purpose of posting the Ten Commandments as a religious
document. Unlike a case in which the passage of time might have some
significance, there has been no dormant period here; Defendants have
87. Id. (emphasis added).
88. Mercer Cnty., 446 F.3d at 653, 654-55 (Cole, J., dissenting); McCreary, 545 U.S.
89. See McCreary Cnty., 607 F.3d at 446-47; CREATION MUSEUM, About the Museum,
http://creationmuseum.org/about/ (last visited May 23, 2013).
The ACLU has lost most of these types of suits despite the Court’s
intervention in 2005. In Grayson County, for example, the Sixth Circuit
panel stated that the burden of proof in religious display suits lies with the
Indeed, there may be good reason to believe that religious purpose
underlies many of the attempts in recent years to place copies of the Ten
Commandments in public buildings. Nonetheless, while “the secular
purpose required has to be genuine, not a sham, and not merely
secondary to a religious objective,” McCreary County, 545 U.S. at
871 . . . , it is those objecting to a display of the Ten Commandments
who bear the burden of producing evidence sufficient to prove that the
governmental entity’s secular purpose is a sham, and that an objective
observer would understand the display to be motivated predominately
Predictably and unfortunately, the court once again ruled against the
ACLU. The Sixth Circuit panel’s overemphasis on the burden of proof
allowed to stand what everyone in Kentucky knows to be true – the primary
reasons for erecting the Foundations Display is to cross the Supreme
Court’s line in the sand concerning the Establishment Clause and to
demonstrate the political majority’s belief in the superiority of Christian
faith. As stated by Judge Moore in her dissent calling the governmental
purpose a “sham,” “when it is a religious leader who proposes [the Ten
Commandments] be hung . . . the desire to post the religious document
establishes the predominant purpose, even if the government entity never
bluntly states that purpose as its rationale.”95 An incredible video of the
installation ceremony currently still is available on-line.96
Those trying to force the Ten Commandments upon nonbelievers via
the falsely historical Foundations Display have learned to leave a sanitized
record to help them overcome court challenges to their “choreographed”
identical displays in at least four other Kentucky counties, and they have
Commandments remain in place.” Grayson Cnty., 605 F.3d at 431-32 (Moore, J.,
dissenting). He “then chastised an individual who desired to remain unaffiliated for not
supporting the Ten Commandments and deemed that individual to be against the religious
text.” Id. at 432. This is a clear example of a Kentucky government official “making
religion relevant, in reality or public perception, to status in the political community.” Lynch
v. Donnelly, 465 U.S. at 692 (O’Connor, J., concurring).
94. Am. Civil Liberties Union v. Grayson Cnty., 591 F.3d 837, 856 (6th Cir. 2010).
95. Id. at 859 n.3 (Moore, J., dissenting).
96. A video showing hundreds singing Amazing Grace during the ceremony is
become emboldened to violate the Establishment Clause in other ways that
some might describe as “more subtle.”97 Unfortunately, some Kentucky
courts seem to go along pretending that knowledge about the Foundations
Display cannot penetrate county lines. As stated by the five Sixth Circuit
judges who dissented from the denial of the rehearing en banc in Mercer
County: “The panel pointed to no changes of constitutional significance
since McCreary County, unless the panel would constitutionalize the fifty
miles of Kentucky between the courthouses.”98 Furthermore, “[a]s the
panel acknowledged, the stories of the Ten Commandment displays erected
in the State of Kentucky are intertwined. In the summer of 1999, two
bordering counties (McCreary and Pulaski) erected identical Ten
Commandments displays. Both displays were successfully challenged by
the ACLU . . . .”99 Meanwhile, within four months of the district court
order enjoining the final McCreary and Pulaski county displays, four other
counties (Mercer, Rowan, Garrard, and Grayson) exactly copied those
displays; all were identical. In fact, on appeal from the resulting ACLU
challenge, the panel in Mercer County held the case in abeyance, precisely
“[b]ecause the challenged display [was] identical in all material respects to
the third and final display in McCreary County.”100
The Supreme Court denied the most recent petition for certiorari filed
in McCreary County, which emphasized the seeming meaninglessness of
the Establishment Clause within the Commonwealth, and the Court has
been uninterested in granting certiorari in other religious display litigation
seeking to clarify the Lemon Test.101 As a result, even within the federal
courts that have jurisdiction within the borders of the Commonwealth of
Kentucky, judges have “flouted” the Supreme Court’s directive to evaluate
in good faith facially suspicious102 governmental words or deeds
explainable by nothing other than religious motivation, thereby crossing the
Establishment Clause line. Thus, both the legislature and many courts in the
very religious Commonwealth remain impervious to the plight of those
seeking to preserve the church-state divide.
C. Ceremonial Deism
Ceremonial Deism cases concern longstanding ritualistic references to
God in various governmental contexts.103 “Courts have generally stated in
holdings and dicta that ceremonial deism is constitutional because these
phrases have lost their religious meaning through the passage of time or
rote repetition.”104 For instance, the national motto, “In God We Trust,” has
been mandatorily printed on coins since 1955 and is now considered
constitutional ceremonial deism due to its longstanding history and
purported secular, ritualistic goal, which trump its religious content.105
10-566) (same). The petitions for certiorari in each of these cases emphasized the need for
clarification of the Lemon test: Petition for Writ of Certiorari, Davenport v. American
Atheists, 2011 WL 1540434 (No. 10-1297); Petition for Writ of Certiorari, Utah Highway
Patrol Ass'n v. American Atheists, 2011 WL 1495152 (No. 10-1276); Petition for Writ of
Certiorari, McCreary Cnty., 2010 WL 4314343 (No. 10-566). But see, Salazar v. Buono,
559 U.S. 700 (2010) (remanding the case concerning transfer of land in Mojave National
Preserve holding Latin Cross erected in 1934 by members of the Veterans of Foreign Wars).
102. The five judge dissent employed the term “facially suspicious,” which should
justify fully shifting the burden of proof in Establishment Clause cases to the government to
show the absence of religious motivation and effect. Cf. Van Orden v. Perry, 545 U.S. 677
(2005) 708 (Stevens, J. and Ginsburg, J., dissenting) (citations omitted) (“In my judgment, at
the very least, the Establishment Clause has created a strong presumption against the display
of religious symbols on public property.”); Cnty. of Allegheny v. Am. Civil Liberties Union,
492 U.S. 573, 650 (1989) (partial concurrence and dissent of Brennan, J., Marshall, J., and
Stevens, J.) (“In my opinion the Establishment Clause should be construed to create a strong
presumption against the display of religious symbols on public property.”). Otherwise, now
that those manipulating government as personal pulpits know simply to leave no written
religious fingerprints to the record to defeat almost any challenge, even if everyone knows
the true intent is religious favoritism. See Am. Civil Liberties Union v. Mercer Cnty., 446
F.3d 651, 653 (6th Cir. 2005) (using “facially suspicious” language).
103. For resources on ceremonial deism, see Christopher C. Lund, In Defense of the
Ministerial Exception, 90 N.C. L. REV. 1 (2011); Christopher C. Lund, Legislative Prayer
and the Secret Costs of Religious Endorsements, 94 MINN. L. REV. 972 (2010); Christopher
C. Lund, The Congressional Chaplaincies, 17 WM. & MARY BILL RTS. J. 1171 (2009).
Corbin I, supra note 25, at 1546.
These cases best illustrate how history and longstanding practices can
be construed to protect what would otherwise likely be an unconstitutional
establishment of religion. In 2004, in the case of Elk Grove Unified School
District v. Newdow, the Supreme Court dismissed on standing grounds a
challenge to students’ recitation of the phrase “under God” within the
Pledge of Allegiance, which had been added to the Pledge in 1954.106 In
dicta, the Court clearly stated that it would not have found a violation of the
Establishment Clause in the case.107 Similarly, in Marsh v. Chambers, the
Supreme Court looked to 18th century practices of Congress when it held
that the Nebraska legislature’s practice of opening every session with a
prayer by a chaplain (paid for by public funds) did not violate the
A three-judge panel of the Second Circuit very recently utilized the
Endorsement Test in a seeming ceremonial deism case arising out of
Greece, New York.109 The Supreme Court also granted a writ of certiorari
to decide whether the town board’s practice of opening session with a
prayer from the “chaplain of the month” —usually someone invoking a
Christian faith—violates the Establishment Clause.110 The stakes are high,
but this Article will leave it to other experts to make predictions about the
outcome or how the Court might utilize the platform of the case to improve
or further mar its jumbled Establishment Clause jurisprudence.111 While
106. Elk Grove Unified Sch. Dist. V. Newdow, 542 U.S. 1, 5 (2004) (holding that a
father lacked standing to bring action in federal court challenging the constitutionality of
school districts’ policy requiring teacher-led recitation of the Pledge of Allegiance).
108. Marsh v. Chambers, 463 U.S. 783 (1983) (holding that the challenged practice did
not violate the establishment clause); see also Newdow v. Rio Linda Union Sch. Dist., 597
F.3d 1007, 1042-44 (9th Cir. 2010) (Reinhardt, J., dissenting) (suggesting that Congress
added “under God” to the Pledge of Allegiance to indoctrinate children with belief in God,
not just country).
111. See Rick Garnett, More on the Town of Greece, PRAWFSBLAWG, (May 20, 2013,
http://prawfsblawg.blogs.com/prawfsblawg/2013/05/more-on-the-town-ofgreece.html; Paul Horwitz, Beware of Town of Greece Bearing Gifts, PRAWFSBLAWG, May
20, 2013, 10:18 PM),
http://prawfsblawg.blogs.com/prawfsblawg/2013/05/beware-of-townof-greece-bearing-gifts.html; Eugene Volokh, New Establishment Clause Case for the
Supreme Court, THE VOLOKH CONSPIRACY (May 20, 2013, 9:45 AM),
see generally Andrew Koppelman, Defending American Religious Neutrality (2013);
Andrew Koppelman, Phony Originalism and the Establishment Clause, 103 NW. U. L. REV.
much more could be written about the ceremonial deism doctrine, for
purposes of this Article the point is simple: time is an obstacle in religious
liberty litigation, because over time, courts tend to justify what would
otherwise be unconstitutional practices by pointing to their longstanding,
and thus historical, nature.
D. Governmental Speech Doctrine
It is this author’s—perhaps minority—opinion, like that of Professor
Corbin, that “government religious speech harms both the equality and
liberty of nonbelievers.”112 This author believes that the main purpose of
the Establishment Clause is to protect religious minorities, including the
nonbelievers.113 However, government religious speech is common and has
often gained the Court’s blessing, as in the creation of the government
speech doctrine in Pleasant Grove City, Utah v. Summum in 2009.114
In Pleasant Grove v. Summum, the issue was whether a city’s denial of
permission to a private organization seeking to place a religious monument
in a park violated the Establishment Clause. Pioneer Park was a public park
located in the Historic District of Pleasant Grove City, Utah. The park
contained fifteen permanent displays, including an historic granary, a
September 11 monument, a wishing well, the Ten Commandments, and the
City’s first fire station.115 Eleven of the fifteen existing displays were
donated to the park by private sources. A minority religious organization
then sought permission to display a stone monument containing the Seven
Aphorisms of Summum,116 but the government denied the requisite
The Supreme Court’s majority opinion, authored by Justice Alito, set
forth the framework under which the parties’ Establishment Clause
arguments would be evaluated.118 The Court first determined whether the
displays were considered government speech, as opposed to governmental
regulation of private speech (which would be subject to strict scrutiny).119
The Court held that the private displays donated for erection on public
property amounted to governmental speech.120 The Court then found that
the city choosing not to display the stone monument was constitutional,
because it could not be forced to engage in any particular speech.121 The
Court reasoned that, while the challengers to the display saw the
monuments as an expression by the government, each individual has the
ability to develop his or her own interpretation of it.122 Justice Alito then
distinguished private speech such as temporary displays (Christmas trees
and Menorah) from permanent monuments on public property, which
would be considered government speech.123 In light of the Summum case,
which “has truly frightening implications for free speech law,”124 it may
prove difficult to force via judicial fiat inclusion of non-majority viewpoints
as a means of remedying one-sided displays. This is but one of many
strategic difficulties nonbelievers face in mounting constitutional
challenges to government-sponsored religious expression.
III. Nonbelievers Need New Litigation Strategies
Nonbelievers and others seeking to use the courts to enforce the
constitutionally required church-state divide need new litigation strategies
for two primary reasons: (
) the above-discussed case law and turnover on
the Court has made litigation under the Establishment Clause risky, and (
discrimination against non-believers in the nation’s conservative heartland
is on the rise, leading to further ostracization of non-believers from the
democratic process. Both of these issues, as well as suggestions for new
strategies, will be discussed in sub-parts A, B, and C, below.
118. Id. at 462.
119. Id. at 470.
120. Id. at 471.
121. Id. at 479.
122. Id. at 478.
123. Id. at 480.
124. Erwin Chemerinsky, A Dangerous Free Speech Ruling, 45 TRIAL 60 (July 2009).
A. Inconsistent Case Law and Heightened Litigation Risk
The Supreme Court has yet to find any single principle that
consistently drives a majority in Establishment Clause cases.125 There is
unpredictability. For example, in Van Orden, the Court stated that the
Lemon Test was not useful in the case,126 while it employed the Lemon Test
in McCreary County which was decided on the same day.127 The difference
between the outcomes was due to Justice Breyer voting differently in each
case.128 Justice Breyer did not seem to use any specific Establishment
Clause test, but said that Justices should just use their “legal judgment” in
cases like this.129 “At some point during the last ten years, one or more of
the nine Justices have articulated ten different Establishment Clause
Further, “Justice O’Connor’s Non-Endorsement approach may seem
more focused, but uncertainties about what behavior constitutes
endorsement greatly reduces its apparent simplicity.”131 Nor has the
NonEndorsement Test commanded a Court majority.132 Justice Kennedy has
rejected the Non-Endorsement Test completely and suggested the
constitutionality of actions challenged under the Establishment Clause
should turn on whether there is some kind of coercion.133 Lee v. Weisman,
authored by Justice Kennedy, crystallized the issue of the case as “whether
the exposure to the government’s religious expression is voluntary, and
whether the governmental practice coerces religious belief.”134 As Justice
Kennedy noted, coercion “may not be limited to the context of public
schools . . . .”135 Although Lee did not indicate who beyond high school
children should not have to endure being put “in the dilemma of
participating, with all that implies, or protesting,”136 the reality in many
125. Anderson, supra note 46, at 762.
126. Tomlinson, supra note 30, at 273.
127. McCreary Cnty. v. Am. Civil Liberties Union, 545 U.S. 844, 850 (2005).
128. Tomlinson, supra note 30, at 288.
130. Gey, supra note 31, at 725.
131. Greenawalt, supra note 39, at 1138.
132. Anderson, supra note 46, at 764.
133. Holland, supra note 43, at 1627.
134. Lee v. Weisman, 505 U.S. 580, 580 (1992).
135. Id. at 592 (citing Cnty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573,
661) (1989) (Kennedy, J., concurring in part and dissenting in part).
parts of the country is that nearly everyone is subject to enormous pressure
Litigation under the Establishment Clause today poses risks to
nonbelievers seeking to challenge improper injection of religion into
government. As previously noted, the current analysis under the
Establishment Clause is highly criticized for being inconsistent,
unpredictable, and confusing.137 The Court applies different tests, or
interprets the same test differently, or Justices switch votes depending on
the facts, which all equals to uncertainty for the nonbelievers seeking
justice in the court systems.
Moreover, many would posit that the composition of the conservative
Roberts Court renders challenges by nonbelievers under the Establishment
less likely to succeed.138 Indeed, there is real concern that the Roberts
Court might abandon the current analysis under Establishment Clause for a
more pro-religion standard.139 Chief Justice Roberts and Justice Alito
replaced Chief Justice Rehnquist and Justice O’Connor, respectively,
leaving uncertainty surrounding the prospects that the Establishment Clause
will continue to find majority support to protect nonbelievers.140 A
fivejustice consensus could emerge to all but obliterate standing for
organizations or individuals to bring this type of litigation under the
In light of the opinions in Van Orden and McCreary County, it appears
that Justices Scalia, Thomas, and probably Roberts, Kennedy, and Alito do
not agree with Justice O’Connor’s view that the Establishment Clause
protects an equality interest.142 Justice-counting is never certain,
however.143 Inconsistencies result when justices switch sides, and the
majority changes its analysis. Justice O’Connor and Justice Kennedy were
predominantly considered the swing votes.144 Further, even the articulation
of the applicable tests can vary, causing inconsistent results. Justice
Kennedy, predicted by Professor Erwin Chemerinsky to be the most
important swing vote in the Establishment Clause arena on the current
court,145 seems to adhere to the case-by-case coercion test.146 Thus,
personnel changes on the Court make it difficult to predict future outcomes
in Establishment Clause cases.
The Court has not yet decided enough cases using the coercion theory
to predict authoritatively what would amount to coercion in a close case.147
But the City of Greece148 case provides the Court a platform to how to
rectify the Marsh ceremonial deism doctrine with the Lemon Endorsement
Test.149 How it will do so – or whether it will attempt to adopt one
controlling principle, such as the coercion principle – is anyone’s guess. As
of right now, the outcome of any Establishment Clause analysis remains
highly case-specific and impossible to predict in all but the most obvious of
In any event, as observed by one scholar, “the First Amendment
clauses are less effective when the problem is neither interference nor true
coercion, but unequal treatment.”151 Therefore, nonbelievers should seek
new avenues to challenge religious discrimination.
B. Risking Discrimination and Alienation
The problem of present-day discrimination and alienation of
nonbelievers is quite real. Supported by surveys and a litany of sources,
Professor Corbin recently made the following well-supported succinct
observation: “Nonbelievers still make up a small minority in the United
States, and they remain disliked, distrusted, and not truly American in the
eyes of many. As a result, many atheists are hesitant to reveal their
religious views, and those who do risk discrimination or attack.”152
Nonbelievers are victims of stereotypes, prejudices, and hatred. For
example, just across from its Kentucky suburbs in Cincinnati, Ohio, a
landowner received death threats after the leased billboard on his land
displayed the message: “Don’t believe in God? You’re not alone.”153 He
reneged on the lease.154 In Kentucky, a billboard was erected that depicted
a boy pointing a gun at the viewer with the following quote: “If God
doesn’t matter to him, do you?”155 Even in the wake of the devastating
Oklahoma City tornado, an atheist survivor shared an awkward moment
with a CNN reporter asking her if she thanked God she was alive.156
Notwithstanding the cultural ostracism often faced by nonbelievers, if the
Supreme Court stays true to a core purpose of the Establishment Clause and
protects minorities, it can send a message to citizens to accept nonbelievers
in our society.
According to a University of Minnesota study, atheists are the most
despised minority in the United States.157 In 1999, a Gallup Poll
demonstrated that even if an atheist were qualified as President, 45 percent
of Americans would not vote for that candidate.158 “Americans rated
atheists as the group that least agrees with their vision of America and the
group that they would most disapprove of their children marrying.”159
Recent polls found that in parts of the country with religious majorities,
atheists were the least liked people.160 This prejudice against atheists is
predominantly due to a feeling of distrust, which “generalized even to
participants from more liberal, secular populations.”161 “A description of a
criminally untrustworthy individual was seen as comparably representative
of atheists and rapists but not representative of Christians, Muslims, Jewish
people, feminists or homosexuals.”162 Further, studies showed that this
belief is premised upon the assumption that most people believe that those
who have a relationship with God and believe God is watching them will
behave better than those who don’t believe.163 “[A]theists were
systematically socially excluded only in high-trust domains; belief in God,
but not authoritarianism, predicted this discriminatory decision-making
against atheists in high trust domains.”164 Thus, distrust and political
ostracism of atheists in America is a true problem needing a remedy.
C. Seeking New Strategies
Just as there is a movement to inject God into American politics, there
is a countermovement among non-believers to use the courts to uphold the
constitutional church-state divide. Among those who have filed litigation
recently are the ACLU;165 American Atheists, Inc.;166 Freedom From
Religion Foundation;167 Michael Newdow, an individual attorney in
California,168 and other groups and individuals. Any civil rights movement
involving a diverse array of uncoordinated actors runs the risk of
individuals pulling in opposite directions. My thinking in putting this
Article into the public domain is to generate conversation among the
various groups and individuals to maximize the movement’s chances of
success. The remainder of this sub-part will attempt to do this by
discussing American Atheists’ newest litigation against the IRS and how it
might lead to new strategies for those seeking to uphold the church-state
divide, including by drawing some lessons from the landmark litigation
from the civil rights era, Brown v. Bd. of Ed. of Topeka.169
American Atheists, Inc. is an advocacy organization that often brings
litigation to challenge Establishment Clause violations. Its most recent
litigation challenging the Internal Revenue Service’s preferential treatment
of churches and religious organizations under I.R.C. § 501(c)(
) seeks to
open this new path. The basis of American Atheists’ complaint is rooted in
the Internal Revenue Code’s treatment of “non-profit” status:
I.R.C. § 501(c)(
) distinguishes between entities that are religious in
nature, on the one hand, and those that are charitable, scientific, testing
for the public safety, literary, educational, or dedicated to amateur
athletics or the prevention of cruelty to children or animals, on the other.
“Religious organizations” and “churches” are treated differently from all
other organizations entitled to tax exemptions under I.R.C. § 501(c)(
Additionally, under the IRS’s application of I.R.C. § 501(c)(
receive certain preferences that even religious organizations do not.170
American Atheists argues that such treatment violates Equal Protection
principles inherent in the Due Process Clause of the Fifth Amendment, the
Religious Test Clause of Article VI, § 3 of the Constitution, and the
Establishment Clause of the First Amendment. Sub-part 1 below will flesh
out very briefly the Equal Protection argument, including some lessons
from Brown, while Sub-part 2 will briefly introduce the Religion Test
Clause argument. As the purpose of this Article is to develop new legal
many significant legal accomplishments nationwide.”).
168. Michael Newdow– Biography, WIKIPEDIA: THE FREE ENCYCLOPEDIA,
http://en.wikipedia.org/wiki/Michael_Newdow (last visited May 28, 2013) (“He is best
known for his efforts to have recitations of the current version of the Pledge of Allegiance in
public schools declared unconstitutional.”).
169. Brown v. Bd. of Ed. of Topeka, 347 U.S. 483, 488 (1954) (holding that
segregation denied plaintiffs equal protection of the laws as guaranteed by the Fourteenth
170. E.g., Complaint for Injunctive & Declaratory Relief, Am. Atheists, Inc., v.
Shulman, No. 12-264 (Dec. 20, 2012) (on file with author).
theories, the Establishment Clause arguments are not discussed herein. The
litigation is at the incipient stages and would benefit from strategic
brainstorming from the broader community seeking to preserve the
1. Equal Protection and Lessons from Brown
American Atheists, in its complaint, claims that I.R.C. § 501(c)(
violates the Equal Protection principles inherent in the Fifth Amendment in
that it discriminates between entities solely on the basis of whether they
profess deistic beliefs.171 Courts commonly have used the Equal Protection
Clause of the Fourteenth Amendment to protect minorities from
discriminatory laws.172 The Court has extended this protection to prevent
discrimination based on gender, alienage, illegitimacy and burdens on
fundamental rights, such as voting and free speech.173 So it seems that
Equal Protection principles could apply to bar religious discrimination
In Brown v. Bd. of Ed. of Topeka, the Court held that separate schools
for African Americans violated the Equal Protection Clause of the
Fourteenth Amendment.174 In Brown, the Court famously held that separate
was not equal, overruling Plessy v. Ferguson.175 The Court relied upon the
poignant – yet scientifically weak – doll study as evidence of this
inequality.176 The Court stated, “to separate [Black students] from others of
172. E.g., Shelley v. Kraemer, 68 S.Ct. 836 (1948) (holding that courts cannot enforce
racial covenants in real estate); Lawrence v. Texas, 539 U.S. 558 (2003) (holding that
intimate sexual conduct is part of the liberty covered by due process).
174. Brown v. Bd. of Ed., 347 U.S. 483, 488 (1954) (“[T]hey have been denied
admission to schools attended by white children under laws requiring or permitting
segregation according to race. This segregation was alleged to deprive the plaintiffs of the
equal protection of the laws under the Fourteenth Amendment.”); Missouri v. Jenkins, 515
U.S. 70, 120-21 (1995) (Thomas, J. concurring) (citing Brown v. Bd. of Ed., 370 U.S. 483
(1954) (“At the heart of this interpretation of the Equal Protection Clause lies the principle
that the government must treat citizens as individuals and not as members of racial, ethnic,
or religious groups.”)).
176. See generally JACK M. BALKIN, REWRITING BROWN, IN WHAT BROWN V. BOARD OF
EDUCATION SHOULD HAVE SAID (Jack M. Balkin ed., 2001) (critiquing the Court’s use of the
doll study in footnote 11); Michael Heise, Judicial Decision-Making, Social Science
Evidence, and Equal Educational Opportunity: Uneasy Relations and Uncertain Futures, 31
SEATTLE U. L. REV. 863, 866-69 (2008) (“Most leading constitutional scholars today
(granted, with the considerable benefit of hindsight) eschew the particular evidentiary path
similar age and qualifications solely because of their race generates a
feeling of inferiority as to their status in the community that may affect their
hearts and minds in a way unlikely ever to be undone.”177 The Court went
even further by stating that this feeling of inferiority, undergirded by law,
would affect the children’s ability and desire to learn.
Social science demonstrating the effects of a particular law could be of
relevance in religious cases as well. On the other hand, moving the Court
to accept such evidence outside the context of school litigation might be
difficult, because the Supreme Court “has been particularly vigilant in
monitoring compliance with the Establishment Clause in elementary and
So, what can the movement to uphold the church-state divide learn
from Brown to shift its focus more toward Equal Protection principles,
rather than the Establishment Clause? To at least two other scholars, it is
surprising that Equal Protection principles have never been a cornerstone
for religious cases.179 I do not mean in this Article, however, to
overemphasize or imply exactly how social science data might be used. In
fact, I am hoping this Article will lead to new ideas and voices heard on the
subject. As explained by Justice Thomas in Missouri v. Jenkins:180
Brown I itself did not need to rely upon any psychological or
socialscience research in order to announce the simple, yet fundamental, truth
that the government cannot discriminate among its citizens on the basis
of race. . . . At the heart of this interpretation of the Equal Protection
Clause lies the principle that the government must treat citizens as
individuals, and not as members of racial, ethnic, or religious groups. It
is for this reason that we must subject all racial classifications to the
strictest of scrutiny . . . .181
Strategies are necessary to try to avoid similar shortcomings
experienced since Brown. Extraordinarily insightful commentators have
taken by the Court in Brown.”); accord Sanjay Mody, Note, Brown Footnote 11 in
Historical Context: Social Science and the Supreme Court’s Quest for Legitimacy, 54 STAN.
L. REV. 793, 803-14 (2002); Herbert Wechsler, Toward Neutral Principles of Constitutional
Law, 73 HARV. L. REV. 1 (1959).
177. Brown v. Bd. of Ed., 347 U.S. 483, 494 (1954) (emphasis added).
178. Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987).
179. Gellman & Looper-Feldman, supra note 12, at 667.
180. Missouri v. Jenkins, 515 U.S. 70 (1995) (overturning District Court ruling that
required the state of Missouri to correct de facto racial inequality in schools by funding
salary increases and remedial education programs).
181. See id. at 120-121 (1995) (Thomas, J., concurring) (“The mere fact that a school is
black does not mean that it is the product of a constitutional violation.”).
documented that the Court is moving away from fulfilling the promises of
Brown.182 Some originalists might even maintain that Brown itself was an
unconstitutional decision—or at least deeply flawed constitutionally even if
generally socially desirable.183 At least one scholar has come close to
predicting the demise of social statistics as being useful in modern
educational opportunity litigation.184 Some commentators are particularly
critical of “the Court turning to such evidence in constitutional cases,
especially those involving the equal protection clause.”185 Nonetheless,
despite such obstacles, one lesson to derive from the epic Brown litigation
is that relying too narrowly on a single remedial theory for too long can
In sum, one of my intents in writing this Article is to generate a
dialogue among those interested in developing the Equal Protection angle to
the First Amendment. This is in the spirit of what Professor Charles J.
Ogletree, Jr., constitutional law scholar, did on the fiftieth anniversary of
Brown, when he wrote in an excellent essay trying to preserve some of
182. See generally Joel K. Goldstein, Not Hearing History: A Critique of Justice
Roberts’s Reinterpretation of Brown, 69 OHIO ST. L.J. 791 (2008); Reva B. Siegel, Equality
Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over
Brown, 117 HARV. L. REV. 1470, 1473 n.10 (2004); Neal Devins, School Desegregation Law
in the 1980’s: The Court’s Abandonment of Brown v. Board of Education, 26 WM. & MARY
L. REV. 7 (1984).
183. See Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A
Response to Professor McConnell, 81 VA. L. REV. 1881, 1883 (1995) (criticizing an
argument in favor of Brown being constitutional on the grounds the argument “fails to show
either that Brown is correct on originalist grounds, or even, as he more modestly claims, that
Brown is within the legitimate range of interpretations’ of the Fourteenth Amendment”);
Ronald Turner, Was “Separate But Equal” Constitutional?: Borkian Originalism and
Brown, 4 TEMP. POL. & CIV. RTS. L. REV. 229 (1995) (exploring the originalism arguments
counter to Judge Bork’s theorizing that Brown could be squared with the original
understanding of the Fourteenth Amendment).
184. Michael Heise, Judicial Decision-Making, Social Science Evidence, and Equal
Educational Opportunity: Uneasy Relations and Uncertain Futures, 31 SEATTLE U. L. REV.
863, 883 (2008) (“Reliance on social science evidence in judicial decisions, especially in
constitutional cases, continues to make scholars and courts uneasy.”). But see generally
Gordon J. Beggs, Novel Expert Evidence in Federal Civil Rights Litigation, 45 AM. U. L.
REV. 1 (1995).
Heise, supra note 184, at 885.
186. E.g., Lia B. Epperson, True Integration: Advancing Brown’s Goal of Educational
Equity in the Wake of Grutter, 67 U. PITT. L. REV. 175, 204 (2005) (noting limits of a one
directional strategy in desegregation litigation); see also Martha Minnow, Surprising
Legacies of Brown v. Board, 16 WASH. U. J.L. & POL’Y 11 (2004) (discussing various
aspects of law and society beyond race relations impacted by Brown).
As we reflect on fifty years of Brown in the context of where we are
today as a country of diverse people, we have a clearer sense of its
successes and failures and the challenge for the future. In the pages that
follow, my goal is to share my assessment of Brown and its progeny, in
the hope that others will seek solutions to these problems and meet the
laudable goals of Brown, which have, regrettably, thus far not been
In contrast to the doll study used in Brown, recently gathered statistics
demonstrating large numbers of fellow Americans’ attitudes towards
atheists are far more scientifically reliable given the large sample sizes.188
In many of the cases that fall within the four broad areas of the
Establishment Clause discussed above, the problem is not that people
necessarily feel, at least not strictly, that strong-willed nonbelievers are
being coerced; they feel that they are being ostracized by government actors
for being non-Christian, that they are being rendered outsiders, second-class
citizens, and less “American” than the Christian majority.189 This ostracism
discourages participation in the political process, which serves to encourage
political insiders to cater further to the majority at the expense of
nonbelievers.190 For example, in recent litigation, almost 35 of the 38
members of the Kentucky Senate signed an amicus brief authored by Roy
Moore191 encouraging the elected appellate court judges not to follow the
Supreme Court’s jurisprudence on the grounds that it purportedly
contravenes the First Amendment.192 Ninety-six Kentucky House of
Representative members – out of a total of only one hundred – signed a
corresponding brief seeking to revive Justice David Josiah Brewer’s
widely-discredited statement in Church of The Holy Trinity v. United
States193 that the United States is a “Christian nation.”194
While there is always risk of backlash, such as is apparent in the
“billboard wars,”195 the Court’s protection of atheists’ individual liberties
could lead to more widespread acceptance of them by more Americans. If
the law continues to be used as a tool to ostracize nonbelievers, their status
as second-class citizens in most of the country will become further
entrenched. Take the following examples, which while focused on atheists,
are relevant to all those interested in preserving the church-state divide.
The idea that atheists should be deemed incompetent to serve as witnesses
“was not put to rest in America until well into the twentieth century” and
still lingers unchallenged in multiple state constitutions.196 Atheism can
even impact one’s likelihood of being awarded custody or adoption of
children.197 People also have been forced out of non-religious jobs for
Various Supreme Court opinions have acknowledged the alienation of
193. Church of the Holy Trinity v. U.S., 143 U.S. 457 (1892) (holding that a minister is
not a foreign laborer under the statute even though he was a foreigner).
194. Brief for Thirty-Five Kentucky State Senators, supra note 191, at 18, available at
http://kysecurity.files.wordpress.com/2010/05/motion-2_0001.pdf; see also Steven K.
Green, Justice David Josiah Brewer and the “Christian Nation” Maxim, 63 ALA. L. REV.
427, 427-28 (1999) (“Judges and commentators have panned the Christian nation
pronouncement as ‘arrogant’ and ‘anachronistic,’ an ‘aberration,’ or at best, as stating a mere
‘truism.’”). Even Justice Brewer himself did not seem to truly believe the mantra had legal
significance. See DAVID J. BREWER, THE UNITED STATES A CHRISTIAN NATION 12 (1905).
See supra notes 153-54 and accompanying text.
196. Eugene R. Milhizer, So Help Me Allah: A Historical and Prudential Analysis of
Oaths As Applied to the Current Controversy of the Bible and Quran in Oath Practices in
America, 70 OHIO ST. L.J. 1, 26 n.10 (2009); see generally Torasco v. Watkins, 367 U.S. 488
(1961) (striking Maryland constitution religious test required of notary public applicant);
Paul W. Kaufman, Note, Disbelieving Nonbelievers: Atheism, Competence, and Credibility
in the Turn of the Century American Courtroom, 15 YALE J.L. & HUMAN. 395 (2003)
(describing ineligibility to serve as witnesses, jurors, notaries public and other public
197. See Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions,
81 N.Y.U. L. REV. 631, 633-35 (2006).
198. E.g., Robert F. Worth, From Bible-Belt Pastor to Atheist Leader, N.Y. TIMES
MAG., (Aug. 22, 2012),
http://www.nytimes.com/2012/08/26/magazine/from-bible-beltpastor-to-atheist-leader.html?_r=1 (describing frequency of even preachers losing faith and
level of discrimination against atheists including loss of employment in non-religious
“Endorsement sends a message to nonadherents that they are outsiders,
not full members of the political community, and an accompanying
message to adherents that they are insiders, favored members of the
political community. Disapproval sends the opposite message.”199
“When the government puts its imprimatur on a particular religion, it
conveys a message of exclusion to all those who do not adhere to the
“The issue before us today is not the abstract philosophical question
whether the alternative of frustrating this desire of a religious majority is
to be preferred over the alternative of imposing “psychological
coercion,” or a feeling of exclusion, upon nonbelievers. Rather, the
question is whether the United States Constitution has imposed a
mandatory choice in favor of the former. As the age-old practices of our
people show, “the answer to that question is not at all in doubt.”201
In looking to the view of this unusually informed observer, this Court
inquires whether the sign or display “sends the ancillary message
to . . . nonadherents ‘that they are outsiders, not full members of the
political community, and an accompanying message to adherents that
they are insiders, favored members of the political community.’”202
I conclude this sub-part with the proposal that despite the
shortcomings of Brown and its progeny,203 the Equal Protection theory
should be developed to try to stem the political ostracism of nonbelievers.
Establishment Clause theories seem to be losing traction. This risk could
come to a head in City of Greece,204 if the Roberts Court undermines the
Court’s prior progression toward solidifying the Establishment Clause’s
protection of nonbelievers, perhaps by raising the bar as to standing.205
2. Religious Test Clause
American Atheists also seeks to develop the theory that provisions of
I.R.C. § 501(c)(
) violate the Religious Test Clause of Article 6 § 3 of the
Constitution. The Religion Test Clause states: “no religious test shall ever
be required as a qualification to any Office or public Trust.”206 American
Atheists argues that the Office of Commissioner of the IRS is
impermissibly denying a benefit to nonbelievers solely because of their
failure to fulfill an IRS test of qualifying as a religious organization or
church. I will briefly summarize the modern theoretical grounds below.207
There is precious, little evidence of what the Founders contemplated
by “public Trust,”208 but standard rules of statutory construction dictate that
it must mean something other than an “Office” because of the two terms’
separation by the word “or.”209 There is some contemporary authority to
support the theory that a modern 501(c)(
) entity, which fills charitable
voids that otherwise would be likely to burden the government, does,
indeed, qualify as a “public Trust.” For example, Professor Robert A.
Destro squarely theorizes that non-profit entities receiving public funds are
“public Trusts,” although he comes to the conclusion that prohibiting
religious entities from being eligible to receive public funds on an equal
footing with non-religious entities effectively applies a religious test against
the religiously-oriented entities.210 He basically argues for a shift to
presume that all entities seeking federal funds can fulfill the non-religious
206. U.S. CONST. art. VI, cl. 3; see also, Girouard v. U.S., 328 U.S. 61 (1965) (holding
that an alien who wishes to enter into the U.S. could not be barred from entering the country
due to religious beliefs, reasoning that there could be no religious test for citizenship with no
similar test for holding office); Torcaso v. Watkins, 367 U.S. 488 (1961) (holding a
provision in the Maryland Constitution that required a religious test, a declaration of belief
in God, in order to hold office as unconstitutional); Luke Beck, The Constitutional
Prohibition on Religious Tests, 35 MELB. U. L. REV. 323, 330 (2011) (“Perhaps surprisingly,
the current constitutions of Arkansas, Maryland, Massachusetts, North Carolina,
Pennsylvania, South Carolina, Tennessee, and Texas all contain religious tests.”).
207. For more historical discussion, see generally Response in Opposition to The
United States’ Motion to Dismiss, Am. Atheists v. Werfel, No. 2:12-cv-00265 (E.D. Ky.
Aug. 6, 2013), ECF No. 22.
208. Gerard V. Bradley, The No Religious Test Clause and the Constitution of Religious
Liberty: A Machine That Has Gone of Itself, 37 CASE W. RES. L. REV. 674, 714 (1987).
209. SUTHERLAND ON STATUTORY CONSTRUCTION § 24.14 (5th ed. 1990) (“Generally,
courts presume that “or” is used in a statute disjunctively unless there is clear legislative
intent to the contrary.”).
210. See generally Robert A. Destro, Equal Treatment: Implications for Nonprofit
Organizations, in EQUAL TREATMENT OF RELIGION IN A PLURALISTIC SOCIETY (Stephen V.
Mansma & J. Christopher Soper, eds., 1998).
objective to be funded, rather than the other way around.211 Nonetheless,
we are in agreement that the First and Fourteenth Amendments supplement
the Religious Test Clauses of Article VI and rest on entirely separate
Other scholars have theorized in a related manner. Two scholars
pondering the manner in which American society provides care to child
abuse victims pondered the “public Trust” concept in the context of relying
on religiously affiliated entities to provide so much of this service.213 They
noted, “[i]t is unclear what standards a private, religious organization must
meet in fulfilling a public trust.”214 They also noted, as is a common issue
in sovereign and governmental immunity in the outsourcing age,215 “[i]t is
unclear as to when the activity of a private actor becomes state action.”216
A leading dictionary dating back to the time of the Founding supports the
211. See generally Bowen v. Kendrick, 487 U.S. 589 (1988) (holding that an Act
authorizing federal grants to public or nonprofit private organizations or agencies for
services and research in the area of premarital adolescent sexual relations and pregnancy
does not violate the Establishment Clause). I would maintain that the Court’s requirement of
written proof of tax misconduct by a religiously affiliated organization is overly deferential,
which is another point to be explored in American Atheists’ suit against the I.R.S. I also
would maintain that the dissenters were correct in the fractured opinion of Agostini v.
Felton, 521 U.S. 203 (1997) (holding that a federally funded program providing
supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid
under the Establishment Clause when such instruction is given on the premises of sectarian
schools by government employees under a program containing safeguards such as those
present in New York City's Title I program).
212. See also Robert A. Destro, Structure of the Religious Liberty Guarantee, 11 J. L. &
RELIGION 355, 369 (1995) (“The significance of the Test Clause is thus both structural and
213. Brian K. Gran & Laurel Gaddie, Changing Boundaries: Child Abuse, Public
Health, and Separation of Church and State, 21 BUFF. PUB. INT. L.J. 1, 29-30 (2003).
Id. at 30.
215. See Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288
(2001) (determining whether private entity has taken on the role of a state actor); Lebron v.
Nat’l Rail. Passenger Corp., 513 U.S. 374 (1995) (determining whether a private entity has
taken on the role of a state actor).
Gran & Gaddie, supra note 203, at 30.
217. SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE, Vol. I-II. (J.F. & C.
Rivington, et. al., eds., 6th ed. 1785); see also HENRY HITCHINGS, DR JOHNSON'S
DICTIONARY: THE EXTRAORDINARY STORY OF THE BOOK THAT DEFINED THE WORLD 225
(2005) (noting the importance of Samuel Johnson’s A DICTIONARY OF THE ENGLISH
LANGUAGE, and stating, “The American adoption of the Dictionary was a momentous event
not just in its history, but in the history of lexicography. For Americans in the second half of
the eighteenth century, Johnson was the seminal authority on language, and the subsequent
development of American lexicography was coloured by his fame”). The dictionary defines
This novel theory offers potential for nonbelievers and others seeking
new means to challenge differing treatment of believers and nonbelievers in
certain contexts.218 Although it remains to be seen how courts will respond
to these novel challenges by atheists, existing Establishment Clause
principles seem to be transforming into an increasingly ineffective
mechanism for attacking government-sponsored religious expression. As a
result, nonbelievers are charged with the task of pursuing new legal theories
– like the Sixth Amendment’s Religious Test Clauses – to achieve balance
and fairness in religious messaging.
In conclusion, significant Supreme Court Establishment Clause
jurisprudence supports the conclusion that ostracism of nonbelievers in
parts of the nation, strongly and politically influenced by religious
fundamentalism, is, in fact, an unconstitutional violation of their rights as
American citizens. While there is risk in pushing for the Supreme Court to
solidify the promises within that jurisprudence, there is daily harm and risk
for the future if the Court does not remedy the second-class citizen status of
many American nonbelievers. This Article is proffered in the hope that
those seeking to litigate such issues may contribute to the development of
novel theories so as to minimize the risk to the most progressive aspects of
“Pu’blick. adj. [public, publique, Fr. Publicus, Latin.]” as:
1. “Belonging to the state or nation; not private. Open; notorious; generally
known”; 2. “General; done by many Regarding not private interest, but the good
of the community”; and 3. “Open for general entertainment.”
The Dictionary defines “trust” as:
1. “Confidence; reliance on another”; 2. “Charge received in confidence”; 3.
“Confident opinion of any event”; 4. “Credit given without examination”; 5.
“Credit on the promise of payment”; 6. “Something committed to one’s faith”;
7. “Deposit something committed to charge of which an account must be
given:”; 8. “Confidence in supposed honesty”; and 9. “State of him to whom
something is entrusted.”
218. Of course, it is possible that the course of the litigation will come to emphasize the
more traditional Establishment Clause arguments. American Atheists also claims that the
) violates the Establishment Clause. It likely will need to distinguish Walz v.
Tax Comm’n. of City of N.Y., 397 U.S. 664 (1970) (holding that a New York statute
exempting from real property tax realty owned by association organized exclusively for
religious purposes and used exclusively for carrying out such purposes is not
unconstitutional as an attempt to establish, sponsor or support religion or as an interference
with free exercise of religion), to successfully challenge differing treatment for believers and
the Court’s Establishment Clause jurisprudence in light of what some
people fear are the leanings of the conservative core of the Roberts Court.
I. Introduction ..................................................................................276 II. Establishment Clause Litigation Prospects for Nonbelievers . .....279 A. School Litigation ................................................................... 283 B. Religious Displays Litigation................................................287
1. Supreme Court Religious Displays Decisions ................288
2. Supreme Court “Ignored” and “Flouted” Six Months After McCreary County ..................................................290
3. Seeing the “Big Picture” from Kentucky........................293 C. Ceremonial Deism.................................................................297 D. Governmental Speech Doctrine.............................................299 III. Nonbelievers Need New Litigation Strategies .............................300 A. Inconsistent Case Law and Heightened Litigation Risk ........301 B. Risking Discrimination and Alienation.................................304 C. Seeking New Strategies.........................................................305
1. Equal Protection and Lessons from Brown ....................307
2. Religious Test Clause .....................................................313 IV. Conclusion....................................................................................315
1. E.g. , Barbara B. Hagerty , Has Obama Waged a War on Religion? , NAT'L PUB. RADIO ( Jan . 8, 2012 ), http://www.npr.org/ 2012 /01/08/144835720/has-obama -waged-a-waron-religion.
2. Matthew 28 : 16 - 20 (International Version) (“[Go] and make disciples of all nations… teaching them to obey everything I have commanded you .”). This religious requirement is known as “the Great Commission.” See The Great Commission, WIKIPEDIA: THE FREE ENCYCLOPEDIA, (Last updated June 7, 2013 ), http://en. wikipedia.org/wiki/Great_Commission.
3. Adam Cohen , Pulpit Freedom: Should Churches Endorse Political Candidates? , TIME (Oct. 16 , 2012 ), http://ideas.time.com/ 2012 /10/16/should-churches -endorse-politicalcandidates/ (reporting “Pulpit Freedom Sunday” to endorse Mitt Romney in churches across America, contrary to the provisions of the U.S. Tax Code that apply to these typically “nonprofit” entities) . It seems possible that the recent IRS scandal surrounding investigation of political activity is related to this wave of civil disobedience . See e.g., Jonathan Weisman , I.R.S. Chief Out after Protest Over Scrutiny of Groups , N.Y. TIMES, May 15 , 2013 , at 1. But see, e.g., Patrick Temple-West, Insight: IRS Has Long History of Burying Non-profits in Paperwork, REUTERS . COM (June 3 , 2013 3:00 PM), http://www.reuters.com/ article/2013/06/03/us-usa -irs-applications-insight-idUSBRE95210L20130603 (“While conservative groups are currently grabbing headlines, a range of charitable non-profits [such as an atheist summer camp 501(c)(3)] say they too were unfairly targeted .”).
4. Susanna Dokupil , “Thou Shalt Not Bear False Witness:” “Sham” Secular Purposes in Ten Commandments Displays, 28 HARV. J.L. & PUB. POL 'Y 609 , 613 - 14 ( 2005 ) [hereinafter Dokupil] .
5. See SUP . CT . OF ALA., http://judicial.alabama.gov/supreme. cfm (last visited May 27 , 2013 ).
6. See generally McGinley v . Houston, 361 F.3d 1328 ( 11th Cir . 2004 ) (ruling in one of the various resulting cases dealing with the courthouse Decalogue) .
7. See FOUND . FOR MORAL LAW , http://morallaw.org/about/ (last visited May 27, 2013 ).
8. Dokupil, supra note 4, at 614 n.15 (citing About the Foundation, Foundation for Moral Law , Inc., available at http://www.morallaw. org/about.htm (last updated Nov . 15 , 200)).
9. See FOUND . FOR MORAL LAW, supra note 7 (stating that the foundation's focus is on “litigation,” which it describes as “represent[ing] individuals involved in religious liberties cases and fil[ing] amicus curiae (friend-of-the-court) briefs in state and federal courts,” and “education,” which it describes as “conduct[ing] seminars to teach the necessity and importance of acknowledging God in law and government”).
10. See Van Orden v. Perry , 545 U.S. 677 ( 2005 ) (holding that the Establishment
17. See Galloway v. Town of Greece , 681 F.3d 20 ( 2d Cir . 2012 ), cert. granted, 2013 WL 2149803 (May 20 , 2013 ) (No. 12 - 696 ) (finding Establishment Clause violation because prayer practice impermissibly endorsed a Christian viewpoint ).
18. E.g., Second Amended Complaint at 10 , Nielson v. School District Five of Lexington & Richland Counties , No. 3 : 12 -cv-01427 -CMC (D.S .C. Nov. 14 , 2012 ), available at http://ffrf.org/uploads/legal/Currie-SAC. pdf; see also infra Part I (discussing Establishment Clause opinions ).
19. See Susan Gellman & Susan Looper-Friedman , Thou Shalt Use the Equal Protection Clause for Religion Cases (Not Just the Establishment Clause ), 10 U. PA. J. CONST . L. 665 , 673 ( 2008 ).
25. E.g., Caroline M. Corbin , Ceremonial Deism and the Reasonable Religious Outsider , 57 UCLA L. REV. 1545 , 1551 ( 2010 ) [hereinafter “Corbin I”] (“However, there is near unanimity among courts and commentators that the Establishment Clause forbids the government from preferring one or some religions over others .”).
26. Id . at 1545; see also Daniel L. Dreisbach, A New Perspective on Jefferson's Views on Church-State Relations: The Virginia Statute for Establishing Religious Freedom in its Legislative Context, 35 AM . J. LEGAL HIST . 172 ( 1991 ) ; see also , e.g., Boris I. Bittker , Interpreting the Constitution: Is the Intent of the Framers Controlling? If Not , What Is?, 19 HARV. J.L. & PUB. POL 'Y 9 ( 1995 ).
27. Caroline M. Corbin , Nonbelievers and Government Speech, 97 IOWA L. REV. 347 , 347 ( 2012 ) (hereinafter “Corbin II”).
28. See infra Part II; see also , e.g., Douglas Laycock , The Benefits of the Establishment Clause , 42 DEPAUL L. REV. 373 , 380 ( 1992 ) (“By making such statements, the government says the real American religion is watered-down Christianity, and everybody else is a little bit un-American .”).
29. Corbin II , supra note 27, at 347.
30. E.g., Christopher D. Tomlinson , Changing the Rules of Establishment Clause Litigation: An Alternative to the Public Expression of Religion Act, 61 VAND. L. REV. 261 , 265 ( 2008 ) (“The few words of the . . . Establishment Clause. . . have created volumes of debate in recent years . . . . ”).
31. See , e.g., Steven G . Gey, Reconciling the Supreme Court's Four Establishment
35. See , e.g., Jason S. Marks , What Wall? School Vouchers and Church-State Separation after Zelman v . Simmons-Harris , 58 J. MO . B. 354 , 355 ( 2002 ) (detailing the history of the Establishment Clause) .
36. See Michael A. Ronsenhouse, Construction and Application of Establishment Clause of First Amendment - U.S. Supreme Court Cases, 15 A.L.R. Fed . 2d 573 ( 2006 ) (explaining that the U.S. Supreme Court has not yet set up a clear test for the Establishment Clause) .
37. See generally La. Fed. of Teachers v. Louisiana., Nos . 2013-CA-0120, 2013 WL 1878913 ( La . May 7, 2013 ); Bush v . Holmes, 919 So. 2d 392 (Fla . 2006 ).
38. Lemon v. Kurtzman , 403 U.S. 602 ( 1971 ) (holding that Pennsylvania's statutes that provided financial support to nonpublic elementary and secondary schools were unconstitutional); see also Sloan v . Lemon , 413 U.S. 825 ( 1973 ) (holding that a Pennsylvania act violated the Establishment Clause by providing reimbursement to parents for a portion of tuition they spent sending their children to a nonpublic school).
39. For just a few examples from authors of diverse political perspectives, see STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 109- 23 ( 1993 ); Kent Greenawalt, Fundamental Questions About the Religion Clauses: Reflections on Some Critiques , 47 SAN DIEGO L. REV. 1131 , 1138 ( 2010 ) ; Ira C. Lupu, The Trouble With Accommodation, 60 GEO WASH L . REV. 743 , 762 n. 87 ( 1992 ) ; Robert H. Bork, What to do about the First Amendment , COMMENTARY MAGAZINE , Feb . 1995 , at 23, available at http://www.commentary magazine.com/article/what-to -do-about-the-first-amendment/ ; Stephen L. Carter & Gary J. Stimson , The Establishment Clause in the Supreme Court: Rethinking the Court's Approach, 72 CORNELL L . REV. 905 , 908 - 35 ( 1987 ).
54. E.g., William M. Howard , First Amendment Challenges to Display of Religious Symbols on Public Property, 107 A.L.R. 5th 1 ( 2003 ).
55. McCreary Cty . v. Am. Civil Liberties Union , 545 U.S. 844 , 881 ( 2005 ) (holding that a determination of these counties' purpose in displaying the ten commandments at courthouses was a sound basis for ruling on the complaint) .
57. Cf. Jack M. Balkin , What Brown Teaches Us about Constitutional Theory , 90 VA. L. REV. 1537 , 1538 ( 2004 ) (“Lesson One: The Supreme Court Is not Countermajoritarian; It Is Nationalist”); see id . at 1551 (“ Lesson Three: Courts Tend to Protect Minorities Just About as Much as Majorities Want Them To”); id . at 1558 (“ Lesson Four: Social Movements Change Constitutional Law, But Not as They Intend” ).
58. Lynch v. Donnelly , 465 U.S. 668 , 671 ( 1984 ) (holding that notwithstanding the significance of the nativity scene, the city did not violate the Establishment Clause) .
59. Id .
60. Id .
61. Id .
62. Id . at 687.
63. Id . at 680.
64. Id . at 671.
65. See , e.g., Anderson, supra note 46 , at 764.
66. Lynch , 465 U.S. at 688 ( O'Connor J. , concurring)
67. Id .
68. Cty. of Allegheny v. Am. Civil Liberties Union , 492 U.S. 573 , 593 ( 1989 ).
69. Id . at 574.
70. Id .
71. See generally McCreary Cnty . v. Am. Civil Liberties Union , 545 U.S. 844 ( 2005 ) (striking McCreary and Pulaski Counties Foundations Displays); Van Orden v . Perry , 545 U.S. 677 ( finding constitutional display of Fraternal Order of Eagles monument ).
72. See , e.g., supra note 39.
73. Tomlinson , supra note 30, at 272.
83. Am . Civil Liberties Union of Ky. v. Mercer Cnty., 446 F.3d 651 , 651 - 52 ( five judge dissent) (additional internal citations omitted).
84. Id . at 655-56 (emphasis added).
85. Am . Civil Liberties Union v. Rowan Cnty., 513 F. Supp .2d 889 , 898 - 99 ( E.D. Ky . 2007 ) (citing Mercer Cty ., 432 F.3d at 634 n.7) .
86. Am . Civil Liberties Union v . McCreary Cnty., 607 F.3d 439 , 452 ( 6th Cir . 2010 ) (Ryan , J., dissenting).
97. Am . Civil Liberties Union v. Mercer Cnty., 446 F3d 651 , 654 ( 6th Cir . 2006 ) ; Cnty. of Allegheny v . Am. Civil Liberties Union , 492 U.S. 573 , 627 - 28 ( 1989 ) (O'Connor , J. , concurring) ( describing how improper religious favoritism may be exercised in “more subtle” ways than “overt efforts at government proselytization”). The Honorable Karen Nelson Moore of the United States Court of Appeals for the Sixth Circuit wisely relied on widely disseminated media reports, which some might argue is in tension with Justice O'Connor's focus on “traditional external signs that show up in the 'text, legislative history, and implementation of the statute .'” Am. Civil Liberties Union v . McCreary Cnty ., 545 U.S. 844 , 862 ( 2005 ) (O'Connor , J. , concurring). Justice O'Connor also stated of Stone and other cases: “In each case, the government's action was held unconstitutional only because openly available data supported a commonsense conclusion that a religious objective permeated the government's action .” Id.
98. Am . Civil Liberties Union v. Mercer Cnty., 446 F.3d 651 , 654 ( 6th Cir . 2006 ) (five judge dissent from denial of rehearing en banc) (internal citation omitted).
99. Id . at 652.
100. Id . at 652 (quoting Mercer Cnty ., 432 F.3d at 626).
101. See Davenport v . Am. Atheists , 132 S. Ct . 12 (Oct. 31 , 2011 ) (No. 08 - 4061 ) (denying certiorari); Utah Highway Patrol Ass'n v . American Atheists , 132 S. Ct . 12 (Oct. 31 , 2011 ) ( Nos . 10 - 1276 , 10 - 1297 ) (same); McCreary, 131 S. Ct . 1474 ( Feb 22, 2011 ) (No.
104. Jessie Hill , Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change In Meaning, 59 Duke L.J. 705 , 707 ( 2010 ).
109. See Galloway v. Town of Greece , 681 F.3d 20 ( 2d Cir . 2012 ), cert. granted, 2013 WL 2149803 (May 20 , 2013 ) (No. 12 - 696 ) (finding an Establishment Clause violation because prayer practice impermissibly endorsed a Christian viewpoint ). 727 ( 2009 ) ; PAUL HORWITZ, THE AGNOSTIC AGE: LAW, RELIGION AND THE CONSTITUTION ( 2011 ); Steven D. Smith , Symbols, Perception, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 MICH . L. REV. 266 ( 1987 ).
112. Corbin II , supra note 27, at 349.
113. Id .
114. Pleasant Grove City v. Summum , 555 U.S. 460 , 464 ( 2009 ) (holding that by allowing placement of donated permanent monuments in a public park, the city was exercising a form of government speech not subject to scrutiny under the Free Speech Clause) .
115. Id .
116. See generally PRINCIPLES OF CREATION, SEVEN SUMMUM PRINCIPLES , http://www.summum.us/philosophy/principles.shtml.
117. Pleasant Grove City v. Summum , 555 U.S. at 466.
137. See E.g. , Gey, supra note 31 , at 725.
138. Cf . Erwin Chemerinsky, Not a Free Speech Court , 53 ARIZ. L. REV. 723 ( 2011 ) (hereinafter “Chemerinsky I”); Erwin Chemerinsky, Moving to the Right, Perhaps Sharply to the Right, 12 THE GREEN BAG 2d 413 ( 2009 ) (hereinafter “Chemerinsky II”).
139. Erwin Chemerinsky , The Roberts Court and Freedom of Speech, 63 FED . COMM. L.J. 579 , 666 ( 2011 ) (hereinafter “Chemerinsky III”).
140. Chemerinsky I , supra note 138, at 742.
141. Cf . Hein v. Freedom From Religion Found ., 551 U.S. 587 ( 2007 ) (finding organization's challenge to “faith-based initiatives” did not fall within narrow exception on taxpayer standing set forth in Flast v . Cohen , 32 U.S. 83 ( 1968 )).
142. Chemerinsky III , supra note 139 , at 678.
143. E.g., Mark Sherman , John Roberts' Health Care Decision Draws More Nuanced Look at Chief Justice's Tenure, HUFFINGTON POST (July 2, 2012 ), http://www.huffingtonpost.com/ 2012 /07/02/john-roberts -health-care-decision_n_ 1642739.html .
144. Steven G . Gey, Reconciling the Supreme Court's Four Establishment Clauses , 8 U. PA. J. CONST . L. 725 , 764 ( 2006 ) (“The best way to assess the current status of any Establishment Clause issue… is to focus on how the Justices respond to particular fact contexts…”).
145. Chemerinsky III , supra note 139.
146. Gey , supra note 144, at 740.
147. Holland, supra note 43, at 1601.
148. Town of Greece, New York v. Galloway , 133, S. Ct 2388 (May 20, 2013 ) (granting a petition for writ of certiorari for the United States Court of Appeals for the Second Circuit) .
149. Lemon v. Kurtzman , 403 U.S. 602 ( 1971 ) (defining the Lemon Test as: (1) the government's action must have a secular legislative purpose, (2) the government's action must not have the primary effect of advancing or inhibiting religion, and (3) the government's action must not result in an “excessive government entanglement” with religion).
150. Greenawalt , supra note 39, at 1133.
151. Gellman , supra note 19, at 666.
152. Corbin II , supra note 27, at 349; accord Gervais W. M. , et al., Do You Believe in Atheists? Distrust Is Central to Anti-atheist Prejudice , J. OF PERSONALITY AND SOC. PSYCHOL ., 101 , 1189 ( 2011 ). One survey of 54,461 adults found that as many as 25 percent of Americans do not believe in a “personal God” although 12 percent of them believe “[t]here is a higher power.” See Barry A . Kosmin & Ariela Keysar , Am. Religious Identification Survey [ARIS 2008] Summary Report 3 , 5 (Mar. 2009 ), http://commons.trincoll.edu/aris/files/2011/08/ARIS_Report_ 2008 .pdf.
153. Hugh Kramer , Death Threats Force Removal of Atheist Billboard, EXAMINER . COM (Nov. 12 , 2009 ), http://www.examiner.com/article/death -threats-force-removal-of-atheistbillboard.
154. Id .
155. See generally BILLBOARD WARS , DANGERGOUS TALK , http://www.dangerous talk.net/billboard-wars. html (last visited Oct . 11 , 2012 ).
156. See Brayden Goyette, Wolf Blitzer Asks Athiest Tornado Survivor if She 'Thanks the Lord,' HUFFINGTONPOST . COM (May 21 , 2013 ), http://www.huffingtonpost.com/ 2013 /05/21/wolf-blitzer -atheist-tornado-survivor_n_3316312.html .
157. Austin Cline , Gallup Polls & Other Surveys on American Attitudes Towards Atheists, ABOUT .COM, http://atheism.about.com/od/atheistbigotryprejudice/a/Atheist Surveys. htm (last visited July 28 , 2012 ).
158. Id .
159. Gervais , supra note 152, at 1189.
160. Id .
161. Id .
162. Id . at 1189.
163. Gervais , supra note 152, at 1189.
164. Phil Zuckerman , Atheism, Secularity and Well-Being: How the Findings of Social Science Counter Negative Stereotypes, 3/6 SOCIOLOGY COMPASS 949 , 953 ( 2009 ).
165. See supra Part I(C).
166. American Atheists , American Atheists Legal Center, ATHIESTS.ORG, http://atheists.org/legal (last visited July 28 , 2013 ) (defining themselves as “committed to the full and absolute separation of religion from government”).
167. Freedom From Religion Foundation , Our Legal Work, FFRF.ORG, http://ffrf.org/legal (last visited May 28 , 2013 ) (“The Freedom From Religion Foundation, an educational watchdog organization working to keep church and state separate, has had
187. Charles J. Ogletree , The Significance of Brown , 20 HARV. BLACKLETTER L.J. 1 , 12 ( 2004 ).
188. See supra notes 134 - 136 and accompanying text.
189. Gellman , supra note 19, at 666.
190. See supra notes 129-131 and accompanying text; see also, Doe v. Harlan Cnty . Sch. Dist., 96 F. Supp . 2d 667 ( 2000 ) (striking down clearly unconstitutional Kentucky law requiring the posting of the Ten Commandments in every public classroom in Kentucky); Roark v . South Iron R-1 Sch . Dist., 540 F. Supp . 2d 1047 (E.D. Mo . 2008 ) (striking school district's practice of allowing Bibles to be distributed in fifth grade classrooms by evangelical Christians) .
191. See supra notes 4-9 and accompanying text .
192. Brief for Thirty-Five Kentucky State Senators as Amicus Curiae, Kentucky Office of Homeland Security v . Christerson , 371 S.W.2d 754 (Ky . Ct. App. 2011 ) (No. 2009-CA001676 ), at 7, available at http://www.morallaw.org/PDF/KYSENATORS_FM LAMICUS% 20BRIEF _ 5 _ 10 _ 10 .pdf.
199. Lynch v. Donnelly , 465 U.S. 668 , 688 ( 1984 ) (O'Connor , J. , concurring).
200. Lee v. Weisman , 505 U.S. 577 , 606 ( 1992 ) (emphasis added)
201. Id . at 646 ( 1992 ).
202. Van Orden v. Perry , 545 U.S. 677 , 696 ( 2005 ) (quoting Lynch v . Donnelly , 465 U.S. 668 , 688 ( 1984 ) (O'Connor , J. , concurring)).
203. E.g., Reva Siegel , Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action , 49 STAN. L. REV. 111 ( 1997 ) (stating that by condoning neutral actions the Court legitimizes practices that perpetual racial disparities).
204. See supra note 148 and accompanying text .
205. See , e.g., Hein v . Freedom From Religion Found , 551 U.S. 587 ( 2007 ) (finding organization's challenge to “faith-based initiatives” did not fall within narrow exception on taxpayer standing set forth in Flast v . Cohen , 392 U.S. 83 ( 1968 )).