Shurtleff v. Boston

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in the judgment.¶

The real problem in this case doesn’t stem from Boston’s mistake about the scope of the government speech doctrine or its error in applying our public forum precedents. The trouble here runs deeper than that. Boston candidly admits that it refused to fly the petitioners’ flag while allowing a secular group to fly a strikingly similar banner. And the city admits it did so for one reason and one reason only: It thought displaying the petitioners’ flag would violate ''the [C]onstitution’s [E]stablishment [C]lause.'' App. to Pet. for Cert. 157a; see also id. , at 153a–154a. That decision led directly to this lawsuit, all the years of litigation that followed, and the city’s loss today. Not a single Member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.¶

How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman , 403 U. S. 602 (1971). Issued during a ''bygone era'' when this Court took a more freewheeling approach to interpreting legal texts, Food Marketing Institute v. Argus Leader Media , 588 U. S. ___, ___ (2019) (slip op., at 8), Lemon sought to devise a one-size-fits-all test for resolving Establishment Clause disputes. That project bypassed any inquiry into the Clause’s original meaning. It ignored longstanding precedents. And instead of bringing clarity to the area, Lemon produced only chaos. In time, this Court came to recognize these problems, abandoned Lemon , and returned to a more humble jurisprudence centered on the Constitution’s original meaning. Yet in this case, the city chose to follow Lemon anyway. It proved a costly decision, and Boston’s travails supply a cautionary tale for other localities and lower courts.¶

*¶

To see how all this unfolded, start with Lemon itself. Lemon held out the promise that any Establishment Clause dispute could be resolved by following a neat checklist focused on three questions: (1) Did the government have a secular purpose in its challenged action? (2) Does the effect of that action advance or inhibit religion? (3) Will the government action “excessive[ly] . . . entangl[e]” church and state? 403 U. S., at 612–613 (internal quotation marks omitted). But from the start, this seemingly simple test produced more questions than answers. How much religion-promoting purpose is too much? Are laws that serve both religious and secular purposes problematic? How much of a religion-advancing effect is tolerable? What does “excessive entanglement” even mean, and what (if anything) does it add to the analysis? Putting it all together, too, what is a court to do when Lemon ’s three inquiries point in conflicting directions? More than 50 years later, the answers to all these questions remain unknown.¶

The only sure thing Lemon yielded was new business for lawyers and judges. Before Lemon , this Court had never held a flag or other similar public display to constitute an unconstitutional “establishment” of religion. See Congressional Research Service, C. Brougher, Public Display of the Ten Commandments and Other Religious Symbols 1–2 (2011) (Brougher); M. McConnell, No More (Old) Symbol¶

Cases, 2019 Cato Sup. Ct. Rev. 91 (2019) (Symbol Cases). After Lemon , cases challenging public displays under the Establishment Clause came fast and furious. And just like the test itself, the results proved a garble. May a State or local government display a Christmas nativity scene? Some courts said yes, others no. 1 How about a menorah? Again, the answers ran both ways. 2 What about a city seal that features a cross? Good luck. 3¶

If anything, the confusion grew with time. In the years following Lemon , this Court modified its “effects” test by requiring lower courts to ask whether a “reasonable observer” would consider the government’s challenged action to be an “endorsement” of religion. See, e.g. , County of Allegheny v. American Civil Liberties Union , Greater Pittsburgh Chapter , 492 U. S. 573, 593 (1989); id. , at 630 (O’Connor, J., concurring in part and concurring in judgment). But rather than fix Lemon ’s problems, this new gloss compounded them. Some argued that any reasonable observer worthy of the name would consider all the relevant facts and law, just as a judge or jury must. See Capitol Square Review and Advisory Bd . v. Pinette , 515 U. S. 753, 778–781 (1995) (O’Connor, J., concurring in part). Others suggested that a reasonable observer could make mistakes about the law or fail to consider all the facts. See, e.g. , American Atheists , Inc. v. Duncan , 616 F. 3d 1145, 1160–1161 (CA10 2010). And that suggestion only raised even more questions. Just¶

------¶

1 Compare Lynch v. Donnelly , 465 U. S. 668, 671–672 (1984) (yes), and American Civil Liberties Union of Ky. v. Wilkinson , 895 F. 2d 1098, 10991100, 1104 (CA6 1990) (yes), with County of Allegheny v. American Civil Liberties Union , Greater Pittsburgh Chapter , 492 U. S. 573, 578–579 (1989) (no), and Smith v. County of Albemarle , 895 F. 2d 953, 955, 958960 (CA4 1990) (no).¶

3 Compare Murray v. Austin , 947 F. 2d 147, 149 (CA5 1991) (yes), with Harris v. Zion , 927 F. 2d 1401, 1402 (CA7 1991) (no).¶

2 Compare Allegheny , 492 U. S., at 578–581 (yes), and Skoros v. New York , 437 F. 3d 1, 3–4 (CA2 2006) (yes), with Kaplan v. Burlington , 891 F. 2d 1024, 1025–1026, 1030–1031 (CA2 1989) (no).¶

how mistake-prone might an observer be and still qualify as reasonable? On what authority may courts exercise the awesome power of judicial review to declare a duly enacted law unconstitutional thanks only to (admitted) errors about the relevant facts or law? See American Atheists , Inc. v. Davenport , 637 F. 3d 1095, 1108–1110 (CA10 2010) (Gorsuch, J., dissenting from denial of rehearing en banc).¶

Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own “reasonable observer” avatar. In this game, the avatar’s default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it “endorses” religion. If so, game over.¶

Faced with such a malleable test, risk-averse local officials found themselves in an ironic bind. To avoid Establishment Clause liability, they sometimes felt they had to discriminate against religious speech and suppress religious exercises. But those actions, in turn, only invited liability under other provisions of the First Amendment. The hard truth is, Lemon ’s abstract and ahistoric test put “[p]olicymakers . . . in a vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other.” Pinette , 515 U. S., at 767–768 (plurality opinion).¶

Our case illustrates the problem. The flags of many nations bear religious symbols. So do the flags of various private groups. Historically, Boston has allowed them all. The city has even flown a flag with a cross nearly identical in size to the one on petitioners’ flag. It was a banner presented by a secular group to commemorate the Battle of Bunker Hill. See Appendix, infra (photographs). Yet when the petitioners offered their flag, the city flinched. Perhaps it worried: Would the assigned judge’s imagined “reasonable observer” bother to learn about its generous policy for secular groups? Would this observer take the trouble to consult the long tradition in this country allowing comparable displays? Or would he turn out to be an uninformed passerby offended by the seeming incongruity of a new flag flying beside those of the city, State, and Nation? Who could tell. Better to err on the safe side and reject the petitioners’ flag. As it turned out, though, that route only invited years of litigation and a unanimous adverse decision because no government may discriminate against religious speech in a public forum. To avoid a spurious First Amendment problem, Boston wound up inviting a real one. Call it a Lemon trade. 4¶

*¶

While it is easy to see how Lemon led to a strange world in which local governments have sometimes violated the First Amendment in the name of protecting it, less clear is why this state of affairs still persists. Lemon has long since¶

------ been exposed as an anomaly and a mistake.¶

4 It seems possible, too, that these spurious Establishment Clause concerns embolden government officials to treat religion with hostility even when they don’t rely on Lemon by name. Sometimes colleges seek to prevent students from engaging in religious speech, labeling expressions of faith “fighting words.” See Uzuegbunam v. Preczewski , 592 U. S. ___, ___–___ (2021) (slip op., at 1–3). Certain public transit systems that sell advertising space on trains and buses ban religious messages. See Archdiocese of Washington v. Washington Metropolitan Area Transit Authority , 589 U. S. ___, ___–___ (2020) (GORSUCH, J., respecting denial of certiorari) (slip op., at 1–2); Northeastern Pa. Freethought Soc. v. County of Lackawanna Transit Sys. , 938 F. 3d 424, 428–431 (CA3 2019). And some governments seek to exclude religious groups from using public facilities or designations available to others. See InterVarsity Christian Fellowship/USA v. University of Iowa , 5 F. 4th 855, 860–862 (CA8 2021); Bronx Household of Faith v. Board of Ed. , 750 F. 3d 184, 192 (CA2 2014). All of these trades resulted in less First Amendment protection and more needless litigation.¶

From the birth of modern Establishment Clause litigation in Everson v. Board of Ed. of Ewing , this Court looked primarily to historical practices and analogues to guide its analysis. 330 U. S. 1, 9–15 (1947). So, for example, while the dissent in Everson disagreed with some of the majority’s conclusions about what qualifies as an establishment of religion, it readily agreed that “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.” Id. , at 33–49 (Rutledge, J., dissenting). This approach fit, too, with this Court’s usual course in other areas. Often, we have looked to early and long-continued historical practices as evidence of the Constitution’s meaning at the time of its adoption. 5 And, in the years following Everson , the Court followed this same path when interpreting the Establishment Clause. Agree or disagree with the conclusions in these cases, there can be little doubt that the Court approached them in large part using history as its guide. 6¶

------¶

5 See, e.g. , McDonald v. Chicago , 561 U. S. 742, 767–770 (2010); Giles v. California , 554 U. S. 353, 358 (2008); see also The Pocket Veto Case , 279 U. S. 655, 689 (1929).¶

6 See, e.g. , Walz v. Tax Comm’n of City of New York , 397 U. S. 664, 680 (1970) (upholding tax exemptions for churches because they were supported by “more than a century of our history and uninterrupted practice”); School Dist. of Abington Township v. Schempp , 374 U. S. 203, 294 (1963) (Brennan, J., concurring) (“[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers”); McGowan v. Maryland , 366 U. S. 420, 437–440 (1961) (assessing “the place of Sunday Closing Laws in the First Amendment’s history”); Torcaso v. Watkins , 367 U. S. 488, 490 (1961) (concluding that religious-test oaths were one of the elements of “the formal or practical” religious establishments that “many of the early colonists left Europe and came here hoping to” avoid). JUSTICE THOMAS has raised important questions about this Court’s incorporation of the Establishment Clause against the States in these cases. But “[e]ven assuming” incorporation, the Clause “would only protect against an ‘establishment’ of religion as understood at the founding.” Espinoza v. Montana Dept. of Revenue , 591 U. S. ___,¶

Lemon interrupted this long line of precedents. It offered no plausible reason for ignoring their teachings. And, as we have seen, the ahistoric alternative it offered quickly proved both unworkable in practice and unsound in its results. Nor is it as if Lemon vanquished the field even during its heyday. Often, this Court continued to look to history to resolve certain Establishment Clause disputes outside the context of religious displays. 7 And several early decisions applying Lemon were themselves rapidly overruled in part or in whole. 8 All of which in time led Justice after Justice to conclude that Lemon was “flawed in its fundamentals,” “unworkable in practice,” and “inconsistent with our history and our precedents.” County of Allegheny , 492 U. S., at 655, 669 (Kennedy, J., concurring in judgment in part and dissenting in part). 9¶

------¶

___ (2020) (THOMAS, J., concurring) (slip op., at 2).¶

7 See, e.g. , Marsh v. Chambers , 463 U. S. 783, 786 (1983) (surveying history to determine that “[f]rom colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom”).¶

9 See also, e.g. , Salazar v. Buono , 559 U. S. 700, 720–721 (2010) (plurality opinion of Kennedy, J., joined in full by ROBERTS, C. J., and in part by ALITO, J.); Van Orden v. Perry , 545 U. S. 677, 699–700 (2005) (BREYER, J., concurring) (noting “ Lemon ’s checkered career in the decisional law of this Court” (internal quotation marks omitted)); id. , at 692–693 (THOMAS, J., concurring) (“This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges”); McCreary County v. American Civil Liberties Union of Ky ., 545 U. S. 844, 890 (2005) (Scalia, J., joined in full by Rehnquist, C. J., and THOMAS, J., and in part by Kennedy, J., dissenting) (“[A] majority of the Justices on the current Court . . . have, in separate opinions, repudiated the brain-spun ‘ Lemon test’ ”); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet , 512 U. S. 687, 720 (1994)¶

8 See, e.g. , Agostini v. Felton , 521 U. S. 203, 236 (1997) (overruling School Dist. of Grand Rapids v. Ball , 473 U. S. 373 (1985), and Aguilar v. Felton , 473 U. S. 402 (1985)); Mitchell v. Helms , 530 U. S. 793, 835 (2000) (plurality opinion) (overruling Wolman v. Walter , 433 U. S. 229 (1977), and Meek v. Pittenger , 421 U. S. 349 (1975)).¶

Recognizing Lemon ’s flaws, this Court has not applied its test for nearly two decades. In Town of Greece v. Galloway , this Court declined an invitation to use the Lemon test. See 572 U. S. 565, 577 (2014); Brief for Respondents in Town of Greece v. Galloway , O. T. 2013, No. 12–696, pp. 58–60. Instead, the Court explained that the primary question in Establishment Clause cases is whether the government’s conduct “accords with history and faithfully reflects the understanding of the Founding Fathers.” 572 U. S., at 577 (internal quotation marks omitted). The Court observed that this form of analysis represents the rule rather than “an exception” within the “Court’s Establishment Clause jurisprudence.” Id ., at 575–577 (internal quotation marks omitted).¶

In American Legion v. American Humanist Association we underscored the message. 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 25). Again we expressly refused to apply Lemon , this time in a challenge to a public display—the very kind of dispute Lemon ’s test ushered into existence and where it once held sway. 588 U. S . , at ___–___ (slip op., at 13–16). Again we explained that “[i]f the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met.” 10 Id ., at ___ (slip op., at 13).¶

------¶

10 See also American Legion , 588 U. S., at ___ (THOMAS, J., concurring in judgment) (slip op., at 7) (“[B]ecause the Lemon test is not good law, we ought to say so”); id. , at ___ (GORSUCH, J., concurring in judgment) (slip op., at 7) (“ Lemon was a misadventure. It sought a ‘grand unified theory’ of the Establishment Clause but left us only a mess”); id. , at ___ (KAVANAUGH, J., concurring) (slip op., at 1) (“As this case again demonstrates, this Court no longer applies the old test articulated in Lemon ”).¶

(O’Connor, J., concurring in part and concurring in judgment); Committee for Public Ed. and Religious Liberty v. Regan , 444 U. S. 646, 671 (1980) (Stevens, J., dissenting) (disparaging “the sisyphean task of trying to patch together the ‘blurred, indistinct, and variable barrier’ described in Lemon ”).¶

And again we stressed that the right place to look for guidance lies in '''historical practices and understandings.''' Id. , at ___ (slip op., at 25) (quoting Town of Greece , 572 U. S., at 576).¶

*¶

With all these messages directing and redirecting the inquiry to original meaning as illuminated by history, why did Boston still follow Lemon in this case? Why do other localities and lower courts sometimes do the same thing, allowing Lemon even now to “si[t] up in its grave and shuffl[e] abroad”? Lamb’s Chapel v. Center Moriches Union Free School Dist. , 508 U. S. 384, 398 (1993) (Scalia, J., concurring in judgment). There may be other contributing factors, but let me address two.¶

First, it’s hard not to wonder whether some simply prefer the policy outcomes Lemon can be manipulated to produce. Just dial down your hypothetical observer’s concern with facts and history, dial up his inclination to offense, and the test is guaranteed to spit out results more hostile to religion than anything a careful inquiry into the original understanding of the Constitution could sustain. Lemon may promote an unserious, results-oriented approach to constitutional interpretation. But for some, that may be more a virtue than a vice.¶

There is more than a little in the record before us to suggest this line of thinking. As city officials tell it, Boston did not want to ''display flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.'' App. to Pet. for Cert. 160a. Instead, the city wanted to celebrate only “a particular kind of diversity.” Tr. of Oral Arg. 85–86. And if your policy goal is to lump in religious speech with fighting words and obscenity, if it is to celebrate only a “particular” type of diversity consistent with popular ideology, the First Amendment is not exactly your friend. Dragging Lemon from its grave may be your only chance.¶

To the extent this is why some still invoke Lemon today, it reflects poorly on us all. Through history, the suppression of unpopular religious speech and exercise has been among the favorite tools of petty tyrants. See Pinette , 515 U. S., at 760; Feldman v. United States , 322 U. S. 487, 501 (1944) (Black, J., dissenting). Our forebears resolved that this Nation would be different. Here, they resolved, each individual would enjoy the right to make sense of his relationship with the divine, speak freely about man’s place in creation, and have his religious practices treated with respect. See West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 642 (1943). The day governments in this country forage for ways to abandon these foundational promises is a dark day for the cause of individual freedom.¶

Besides, even for those whose policy ambitions run in this direction, invoking Lemon is a myopic tactic. For as long as the First Amendment means anything, government policies that discriminate against religious speech and exercise will only invite litigation and result in losses like Boston’s. Today’s case is just one more in a long line of reminders about the costs associated with governmental efforts to discriminate against disfavored religious speakers. See Good News Club v. Milford Central School , 533 U. S. 98, 120 (2001); Lamb’s Chapel , 508 U. S., at 392–397; Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819, 823–824, 845–846 (1995).¶

Second, it seems that Lemon may occasionally shuffle from its grave for another and more prosaic reason. By demanding a careful examination of the Constitution’s original meaning, a proper application of the Establishment Clause no doubt requires serious work and can pose its challenges. Lemon ’s abstract three-part test may seem a simpler and tempting alternative to busy local officials and lower courts. But if this is part of the problem, it isn’t without at least a partial remedy. For our constitutional history contains some helpful hallmarks that localities and lower courts can rely on.¶

Beyond a formal declaration that a religious denomination was in fact the established church, it seems that founding-era religious establishments often bore certain other telling traits. See M. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110–2112, 2131 (2003) (Establishment and Disestablishment). First, the government exerted control over the doctrine and personnel of the established church. Second, the government mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious exercise. Fourth, the government restricted political participation by dissenters. Fifth, the government provided financial support for the established church, often in a way that preferred the established denomination over other churches. And sixth, the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function. See id. , at 2131–2181. Most of these hallmarks reflect forms of “coerc[ion]” regarding “religion or its exercise.” Lee v. Weisman , 505 U. S. 577, 587 (1992); id ., at 640 (Scalia, J., dissenting); Van Orden , 545 U. S., at 693 (THOMAS, J., concurring).¶

These traditional hallmarks help explain many of this Court’s Establishment Clause cases, too. This Court, for example, has held unlawful practices that restrict political participation by dissenters, including rules requiring public officials to proclaim a belief in God. See Torcaso v. Watkins , 367 U. S. 488, 490 (1961). It has checked government efforts to give churches monopolistic control over civil functions. See Larkin v. Grendel’s Den , Inc. , 459 U. S. 116, 127 (1982). At the same time, it has upheld nondiscriminatory public financial support for religious institutions alongside other entities. See Espinoza v. Montana Dept. of Revenue , 591 U. S. ___, ___–___ (2020) (slip op., at 18–22); Trinity Lutheran Church of Columbia , Inc. v. Comer , 582 U. S. ___, ___–___ (2017) (slip op., at 14–15); Zelman v. SimmonsHarris , 536 U. S. 639, 662–663 (2002). The thread running through these cases derives directly from the historical hallmarks of an establishment of religion—government control over religion offends the Constitution, but treating a church on par with secular entities and other churches does not. See Establishment and Disestablishment 22052208.¶

These historical hallmarks also help explain the result in today’s case and provide helpful guidance for those faced with future disputes like it. As a close look at these hallmarks and our history reveals, “[n]o one at the time of the founding is recorded as arguing that the use of religious symbols in public contexts was a form of religious establishment.” Symbol Cases 107. For most of its existence, this country had an “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.” Lynch , 465 U. S., at 674. 11 In fact and as we have seen, it appears that, until Lemon , this Court had never held the display of a religious symbol to¶

------¶

11 So, for example, when designing a seal for the new Nation in 1776, Benjamin Franklin and Thomas Jefferson proposed a familiar Biblical scene—Moses leading the Israelites across the Red Sea. J. Hutson, Religion and the Founding of the American Republic 50–51 (1998) (Hutson). The seal ultimately adopted by Congress in 1782 features “the Eye of Providence” surrounded by “glory” above the motto Annuit Coeptis—“He [God] has favored our undertakings.” Dept. of State, Bureau of Pub. Affairs, The Great Seal of the United States 4–6 (July 2003). This Court has recognized that President Washington’s 1789 Thanksgiving Day Proclamation referred to “a day of public thanksgiving and prayer” and the role of a “Supreme Being” in “the foundations and successes of our young Nation.” Van Orden , 545 U. S., at 686–687. And President Jefferson allowed various religious groups to use the Capitol for weekly worship services. Hutson 84–94.¶

constitute an establishment of religion. See Brougher 1–2; Symbol Cases 91. The simple truth is that no historically sensitive understanding of the Establishment Clause can be reconciled with a rule requiring governments to “roa[m] the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine.” American Legion , 588 U. S., at ___ (slip op., at 20). Our Constitution was not designed to erase religion from American life; it was designed to ensure “respect and tolerance.” Id. , at ___ (slip op., at 31).¶

*¶

To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon , and it is past time for local officials and lower courts to let it lie.¶

APPENDIX TO OPINION OF GORSUCH, J.¶

The Bunker Hill Flag¶

Source: App. to Pet. for Cert. 146a¶

The Camp Constitution Flag¶

+¶

Source: App. to Pet. for Cert. 132a¶