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Lemon <\/em>on the Chopping Block: The Establishment Clause Implications of Shurtleff v. City of Boston<\/em><\/strong><\/p>\n Daniel D. Benson<\/strong>[1]<\/a><\/p>\n The Supreme Court\u2019s recent decision in Shurtleff v. City of Boston <\/em>is formally about the First Amendment\u2019s \u201cgovernment speech\u201d doctrine. The root of the dispute, however, is not primarily Boston\u2019s disdain for free speech but a misunderstanding of the Establishment Clause and continued reliance on the Lemon <\/em>test.<\/p>\n Over the last four decades, the Supreme Court has repeatedly protected religious speech and emphasized the importance of history in Establishment Clause analysis. Despite these developments, lower courts and government officials at many levels seem to have a shag-carpet understanding of the Establishment Clause: one that is stuck in the 1970s and has not been updated since. Under this view, allowing religious speech on public property or in government-funded programs is constitutionally dangerous, and the safest course for local officials is to exclude it.<\/p>\n That mistaken view of precedent has consequences. Officials have used it to censor religious expression from public transit, exclude religious participants from generally available funding programs, and even deny relief funds to houses of worship devastated by hurricanes.<\/p>\n Boston made a similar error here, and the Court unanimously corrected it. But until the Court expressly overrules Lemon<\/em>, government officials will continue to follow it, to the detriment of both free speech and free exercise.<\/p>\n I.<\/strong><\/p>\n The City of Boston allows private groups to hold events on city property\u2014including flag-raising events at one of the three flagpoles in front of City Hall.[2]<\/a> The application for these events noted that Boston seeks \u201cto accommodate all applicants seeking to take advantage of the City of Boston\u2019s public forums.\u201d[3]<\/a><\/p>\n In twelve years prior to the Shurtleff <\/em>dispute, Boston received 284 requests from private groups wanting to raise a flag of their choice for an hour or two on the flagpole.[4]<\/a> The city approved every single one\u2014flags of foreign nations to celebrate Boston\u2019s ethnic diversity, pride flags flown by Boston Pride, and even a flag advertising a local credit union.[5]<\/a> But something changed with the 285th<\/sup> request when a group called Camp Constitution applied to hoist their \u201cChristian Flag\u201d\u2014white with a red cross on a blue field.[6]<\/a> Boston denied Camp Constitution\u2019s application because the flag was \u201creligious.\u201d[7]<\/a><\/p>\n Camp Constitution and its director, Harold Shurtleff, sued the city, alleging that Boston\u2019s rejection of their Christian flag violated the Free Speech Clause of the First Amendment. Camp Constitution lost in the district court and First Circuit, but the Supreme Court unanimously reversed. Across three opinions, every justice agreed that \u201cthe city\u2019s refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment.\u201d[8]<\/a><\/p>\n The majority opinion focuses on whether Boston\u2019s decision to allow private groups to hoist flags of their choice on the city\u2019s flagpole represented Boston\u2019s own \u201cgovernment speech,\u201d or instead created a forum for the expression of private speech protected by the Free Speech Clause. Given \u201cthe city\u2019s lack of meaningful involvement in the selection of flags or the crafting of their messages,\u201d the Court had no difficulty concluding that the flag raisings were \u201cprivate, not government, speech.\u201d[9]<\/a><\/p>\n Perhaps because this was an easy speech case, the majority broke little doctrinal ground on that point. Shurtleff <\/em>simply adds another data point to a spectrum for lower courts to apply in future cases: If the speech at issue is more like Boston\u2019s flag-raising program in Shurtleff<\/em> or the trademark registration in Matal<\/em>,[10]<\/a> then it\u2019s private. If it\u2019s more like the city park monument in Summum<\/em>[11]<\/a> or the license-plate designs in Walker<\/em>,[12]<\/a> then it\u2019s government speech.<\/p>\n II.<\/strong><\/p>\n Given how easily a unanimous Court concluded that Boston\u2019s flag-raising program was subject to the Free Speech Clause, how did Boston get it so wrong? The answer lies elsewhere in the First Amendment\u2014the Establishment Clause.<\/p>\n After receiving Camp Constitution\u2019s flag-raising application and consulting with city lawyers, a city official explained to Camp Constitution that the exclusion of all \u201cnon-secular flags\u201d was \u201cconsistent with well-established First Amendment jurisprudence prohibiting a local government from \u2018respecting an establishment of religion.\u2019\u201d[13]<\/a> Doubling down, Boston later admitted that excluding religious flags serves \u201cno goal or purpose .\u00a0.\u00a0. except \u2018concern for the so-called separation of church and state or the [C]onstitution\u2019s [E]stablishment [C]lause.\u2019\u201d[14]<\/a> The First Circuit compounded the error when, citing Lemon<\/em>, it concluded that \u201cthe City\u2019s establishment concerns are legitimate.\u201d[15]<\/a><\/p>\n This led six justices to join opinions expressly recognizing that Boston\u2019s core error stemmed from misinterpreting the Establishment Clause. Justice Kavanaugh put it most bluntly: \u201cThis dispute arose only because of a government official\u2019s mistaken understanding of the Establishment Clause.\u201d[16]<\/a> Justice Alito, joined by Justices Gorsuch and Thomas, agreed.[17]<\/a> At oral argument, Justices Kagan and Sotomayor likewise stated that Boston made an Establishment Clause \u201cmistake.\u201d[18]<\/a><\/p>\n Justice Gorsuch, joined by Justice Thomas, wrote separately to identify the source of Boston\u2019s Establishment Clause mistake\u2014the infamous Lemon <\/em>test. \u00a0Lemon <\/em>\u201cbypassed any inquiry into the Clause\u2019s original meaning\u201d and \u201cignored longstanding precedents.\u201d[19]<\/a> The tripartite test prohibits any government action that (1) lacks a secular purpose, (2) has the primary effect of advancing or inhibiting religion, or (3) excessively entangles the government in religion.[20]<\/a> A gloss on the second prong later asked whether a \u201creasonable observer\u201d (whomever that is) would view the government\u2019s action as an \u201cendorsement\u201d (whatever that means) of religion.[21]<\/a><\/p>\n The failings of the Lemon<\/em>\/endorsement test are as familiar as they are extensive. In short, \u201c[t]he test has been harshly criticized by Members of [the Supreme] Court, lamented by lower court judges, and questioned by a diverse roster of scholars.\u201d[22]<\/a> Not surprisingly, then, the Court\u2019s more recent cases like Town of Greece <\/em>and American Legion<\/em> have returned to history as the key to understanding what constitutes an establishment of religion.[23]<\/a> And the Court hasn\u2019t applied Lemon <\/em>in nearly 20 years.[24]<\/a><\/p>\n Shurtleff <\/em>follows the Court\u2019s same trend of abandoning Lemon<\/em>. As Justice Gorsuch points out, \u201c[n]ot a single Member of the Court seeks to defend Boston\u2019s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.\u201d[25]<\/a><\/p>\n Justice Breyer\u2019s six-justice majority doesn\u2019t give the Establishment Clause the time of day once it concludes the flags are private speech.[26]<\/a> It\u2019s a straightforward case of viewpoint discrimination to deny the Christian flag, with no mention of Boston\u2019s fear of being \u201caccused of having endorsed a religion.\u201d[27]<\/a> There\u2019s no discussion of the endorsement test\u2019s \u201creasonable observer\u201d incorrectly attributing a religious message to the government, despite the fact that the majority\u2019s earlier government speech analysis recognizes that a passerby seeing a cross-bearing flag flying in front of city hall might think that the city put it there.[28]<\/a><\/p>\n Contrast that with Good News Club<\/em>, where three dissenting justices raised varying degrees of Establishment Clause concern with permitting religious speech in the limited public form at a public school.[29]<\/a> Even starker is Rosenberger<\/em>, where the four dissenting justices (including Justice Breyer, Shurtleff<\/em>\u2019s author) explicitly argued that the use of a public university\u2019s student activity funds to support religious speech on equal terms with secular speech was, in fact, an establishment of religion.[30]<\/a> By the time Shurtleff <\/em>comes around, though, Justice Breyer cites Good News Club <\/em>and Rosenberger<\/em> as the crux of the Court\u2019s analysis.<\/p>\n The three concurring opinions take an even stronger stand against Boston\u2019s Establishment Clause error. As noted, Justices Gorsuch and Thomas place the blame on Lemon <\/em>directly and caution government officials and lower courts to \u201clet [Lemon<\/em>] die.\u201d[31]<\/a> Justice Kavanaugh explains that the Court \u201chas repeatedly made clear\u201d that \u201ca government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like.\u201d[32]<\/a> And Justice Alito reminds that \u201c\u2018[m]ore than once,\u2019 this Court has \u2018rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design.\u2019\u201d[33]<\/a><\/p>\n III.<\/strong><\/p>\n Shurtleff <\/em>corrects Boston\u2019s error and sends a strong message that \u201ca government may not treat religious persons, religious organizations, or religious speech as second-class.\u201d[34]<\/a> But the Court still needs to do more. Boston is not alone in its misunderstanding of the Establishment Clause. Without a formal overruling of both Lemon<\/em> and its related endorsement test in their entirety, many government officials still apply this outdated reading of the Establishment Clause. As a result, these officials exclude religious individuals and groups from equal access to public forums and public funding.<\/p>\n A few examples illustrate the breadth of the problem:<\/p>\n FEMA finally abandoned its discriminatory policy in 2018 after several houses of worship sued\u2014but not until the churches petitioned the Supreme Court for emergency relief and Justice Alito called for FEMA to respond.[43]<\/a> Congress then passed a law to keep FEMA from returning to its discriminatory policy.[44]<\/a><\/p>\n Members of the Supreme Court and state courts alike have recognized the confusion in the law and the need for the High Court\u2019s clarification. As Justices Kavanaugh, Alito, and Gorsuch stated, the Supreme Court \u201cneed[s] to decide whether governments that distribute historic preservation funds may deny funds to religious organizations simply because the organizations are religious.\u201d[46]<\/a><\/p>\n Although these particular errors stem from state Blaine Amendments rather than the federal Establishment Clause, confusion at the federal level compounds confusion at the state level. For example, the New Jersey Supreme Court cited Lemon<\/em> alongside other cases to conclude that \u201cthe grant program poses questions under any articulation of the current standard.\u201d[47]<\/a> Such cases raise similar concerns over the exclusion of religious exercise and speech.<\/p>\n Thus, for example, when Colorado chose to fund scholarships for students at private colleges in the state, it barred them from being used at any school deemed \u201cpervasively sectarian\u201d in \u201can attempt to conform to First Amendment doctrine.\u201d[51]<\/a> This restriction remained in effect until the Tenth Circuit struck it down in 2008.[52]<\/a><\/p>\n Those cases were years ago, so it might seem that the problem has been resolved. To the contrary, this standard persists in government programs. For example, in Carson v. Makin<\/em>,[53]<\/a> the Supreme Court is currently confronting Maine\u2019s law that restricts private-school tuition vouchers to \u201ca nonsectarian school in accordance with the First Amendment of the United States Constitution.\u201d[54]<\/a><\/p>\n Nor is the problem limited to state and local governments. For example, Congress created a loan program to assist historically Black colleges and universities with capital improvement projects. Congress recognized that HBCUs \u201chave played a prominent role in American history and have an unparalleled record of fostering the development of African American youth.\u201d[55]<\/a> But, borrowing text straight from Hunt<\/em>, Congress excluded any \u201cinstitution in which a substantial portion of its functions is subsumed in a religious mission.\u201d[56]<\/a> The Office of Legal Counsel recently concluded that this restriction \u201cunconstitutionally discriminates on the basis of an institution\u2019s religious character.\u201d[57]<\/a><\/p>\n Despite the OLC opinion, Congress continues to draft legislation using the Hunt<\/em> standard. The \u201cBuild Back Better Act\u201d debated last year would have provided grants for child-care providers to renovate or improve their facilities \u201cto improve child care safety.\u201d[58]<\/a> Ignoring decades of developments in Religion Clauses jurisprudence, the bill clung to the bad old days and barred any child-safety grants from going to child-care facilities whose \u201cfunctions . . . are subsumed in a religious mission.\u201d[59]<\/a><\/p>\n Another reason that municipal officials often rely on Lemon<\/em> and its progeny are the threat letters they receive when they attempt to accommodate religious expression. These letters provide a skewed view of the Establishment Clause; they often do not even mention the Supreme Court\u2019s decisions in Town of Greece<\/em> and American Legion<\/em>, acting as if nothing has changed. Two examples from last year illustrate the trend.<\/p>\n First, Freedom From Religion Foundation wrote to the Pewamo-Westphalia School District in Michigan asking the District to take down a display including a cross.[60]<\/a> The letter does not mention Town of Greece<\/em>, American Legion<\/em>, or more recent Sixth Circuit cases, but does rely on Lemon<\/em> and pre-Town of Greece<\/em> Sixth Circuit precedent. The school took down the displays in response.<\/p>\n Similarly, a public transit authority has ended a longstanding tradition of allowing a private group to display a Christmas creche at a train station in Queens, after Americans United for Separation of Church and State sent a threat letter to the Long Island Railroad for permitting the private display. That letter, written in 2021, makes no mention of American Legion<\/em> or Town of Greece<\/em>, nor any of the Supreme Court\u2019s cases since 2001.[61]<\/a><\/p>\n The point of these examples is not to treat them as proper explanations of the Supreme Court\u2019s Establishment Clause jurisprudence\u2014they decidedly are not\u2014but instead to explain the popular version of Lemon<\/em>\/endorsement jurisprudence, which differs substantially from the Supreme Court\u2019s rulings over the past decade. As Justices Gorsuch and Thomas point out, the Supreme Court has \u201cabandoned Lemon<\/em>\u201d in practice.[62]<\/a> At least three courts of appeals have taken the cue and held that a historical analysis, not Lemon<\/em>, now applies to public display cases.[63]<\/a> But until the Court formally overrules Lemon<\/em>, the threat letters citing Lemon<\/em> and its progeny will continue to be sent, and local officials who don\u2019t know any better will continue to prohibit and tear down displays that have every right to remain.<\/p>\n IV.<\/strong><\/p>\n So once Lemon <\/em>is gone for good, what should replace it? In the wake of Town of Greece <\/em>and American Legion<\/em>, the answer is clear\u2014a standard rooted in the text, history, and traditions of the Establishment Clause.<\/p>\n This is not a new idea. The Court has \u201calways purported to base its Establishment Clause decisions on the original meaning of that provision.\u201d[64]<\/a> Lemon <\/em>was the aberration\u2014ignoring text, history, and longstanding precedent, the Court \u201cgleaned\u201d its test from just two cases decided in the previous three years.[65]<\/a><\/p>\n The Gorsuch\/Thomas concurrence in Shurtleff <\/em>gives a good idea of what a return to a historical analysis would look like. \u201cBeyond 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.\u201d[66]<\/a> The government (1) \u201cexerted control over the doctrine and personnel of the established church\u201d; (2) \u201cmandated attendance in the established church\u201d; (3) \u201cpunished dissenting churches and individuals for their religious exercise\u201d; (4) \u201crestricted political participation by dissenters\u201d; (5) \u201cprovided financial support for the established church, often in a way that preferred the established denomination over other churches\u201d; and (6) \u201cused the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function.\u201d[67]<\/a> Focusing on these historic hallmarks of a religious establishment helps \u201cexplain many of [the] Court\u2019s Establishment Clause cases\u201d and \u201cprovide[s] helpful guidance\u201d for lower courts and government officials alike.[68]<\/a><\/p>\n Applying that approach also makes Shurtleff <\/em>an easy case. \u201c[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.\u201d[69]<\/a> Boston\u2019s \u201csole reason\u201d for discriminating against religious speech disappears, and the dispute probably never arises in the first place. The Establishment Clause doesn\u2019t ask the government to \u201cscrub[] away any reference to the divine\u201d\u2014it calls for \u201crespect and tolerance.\u201d[70]<\/a><\/p>\n ***<\/p>\n Shurtleff <\/em>itself won\u2019t be the case to hammer the final nail in Lemon<\/em>\u2019s coffin. But a unanimous Supreme Court holding that Boston violated the First Amendment by discriminating against religious speech at least takes another swing at it.<\/p>\n [1]<\/a> \u00a0\u00a0\u00a0 Daniel Benson is counsel at the Becket Fund for Religious Liberty. Becket filed an amicus brief in the case discussed in this article. But the views expressed here do not necessarily reflect the views of Becket or its clients. The author thanks his colleagues Lori Windham, Eric Rassbach, and James Kim for their contributions. Any errors remain his own.<\/p>\n [2]<\/a> \u00a0Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).<\/p>\n [3]<\/a> \u00a0Id.<\/em> at 1588.<\/p>\n [4]<\/a> \u00a0Id.<\/em><\/p>\n [5]<\/a> \u00a0Id.<\/em><\/p>\n [6]<\/a> \u00a0Id.<\/em><\/p>\n [7]<\/a> \u00a0Id.<\/em><\/p>\n [8]<\/a> \u00a0Id. <\/em>at 1593; accord id. <\/em>at 1595 (Kavanaugh, J., concurring) (\u201cUnder the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.\u201d); id. <\/em>at 1601 (Alito, J., joined by Thomas and Gorsuch, JJ., concurring in the judgment) (\u201cAs the Court rightly holds, denying Shurtleff\u2019s application to use that forum constituted impermissible viewpoint discrimination.\u201d).<\/p>\n [9]<\/a> \u00a0\u00a0\u00a0 Id<\/em>. at 1593; accord id. <\/em>at 1601 (Alito, J., concurring in the judgement) (\u201c[T]he flag displays were plainly private speech within a forum created by the City, not government speech.\u201d).<\/p>\n [10]<\/a> \u00a0 Matal v. Tam, 137 S. Ct. 1744 (2017).<\/p>\n [11]<\/a> \u00a0 Pleasant Grove City v. Summum, 555 U.S. 460 (2009).<\/p>\n [12]<\/a> \u00a0 Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015).<\/p>\n [13]<\/a> \u00a0Brief for the Petitioners at 14, Shurtleff<\/em>, 142 S. Ct. 1583 (No. 20-1800), 2021 WL 5404792.<\/p>\n [14]<\/a> \u00a0Id. <\/em>at 16.<\/p>\n [15]<\/a> \u00a0Shurtleff v. City of Boston, 986 F.3d 78, 96 (1st Cir. 2021) (citing Lemon v. Kurtzman, 403 U.S. 602, 615 (1971)).<\/p>\n [16]<\/a> \u00a0Shurtleff,<\/em> 142 S. Ct. at 1594 (Kavanaugh, J., concurring).<\/p>\n [17]<\/a> \u00a0Id. <\/em>at 1602 (Alito, J., concurring in the judgement) (\u201cThe City\u2019s decision was grounded in a belief that \u2018[e]stablished First Amendment jurisprudence\u2019 prohibits a government from allowing a private party to \u2018fly a [r]eligious flag on public property.\u2019\u201d).<\/p>\n [18]<\/a> \u00a0 Transcript of Oral Argument at 70-71, Shurtleff<\/em>, 142 S. Ct. 1583 (No. 20-1800) (Kagan, J.) (\u201c[T]his really does go back to Justice Kavanaugh\u2019s point .\u00a0.\u00a0. that this all came about because of a mistake by Mr. Rooney\u00a0.\u00a0.\u00a0.\u00a0. You know, we have a line in one our opinions that says a City Hall .\u00a0.\u00a0. can\u2019t have a cross . . . \u00a0on the roof. And so .\u00a0.\u00a0. Mr. Rooney looks at this and says isn\u2019t this the same thing and prohibits it\u00a0. . . . And so this was a mistake.\u201d); id<\/em>. at 81-82 (Sotomayor, J.) (\u201cHis only problem was, as Justice Gorsuch pointed out, was this mistaken belief that the Constitution required that the city not raise a flag that had a cross by a religious group.\u201d).<\/p>\n [19]<\/a> \u00a0Shurtleff<\/em>, 142 S. Ct. at 1604 (Gorsuch, J., joined by Thomas, J.,<\/p>\n concurring in the judgment).<\/p>\n [20]<\/a> \u00a0Lemon<\/em>, 403 U.S. at 612.<\/p>\n [21]<\/a> \u00a0County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 631 (1989) (O\u2019Connor, J., joined by Brennan and Stevens, JJ., concurring in part and concurring in the judgment).<\/p>\n [22]<\/a> \u00a0Am. Legion v. Am. Humanist Ass\u2019n, 139 S. Ct. 2067, 2081 (2019) (plurality) (footnotes omitted).<\/p>\n [23]<\/a> \u00a0 Town of Greece v. Galloway, 572 U.S. 565, 576 (2014) (\u201c[T]he Establishment Clause must be interpreted by reference to historical practices and understandings.\u201d (cleaned up)); Am. Legion<\/em>, 139 S. Ct. at 2089 (Practices comply with the Establishment Clause if they \u201cfollow in that tradition\u201d of \u201crespect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.\u201d); accord id.<\/em> at 2102 (Gorsuch, J., concurring in the judgement) (agreeing with plurality\u2019s focus on \u201cthe nation\u2019s traditions\u201d).<\/p>\n [24]<\/a> \u00a0Shurtleff<\/em>, 142 S. Ct. at 1607 (Gorsuch, J., concurring in the judgement).<\/p>\n [25]<\/a> \u00a0Id. <\/em>at 1603 (Gorsuch, J., concurring in the judgement).<\/p>\n [26]<\/a> \u00a0Id. <\/em>at 1593.<\/p>\n [27]<\/a> \u00a0Transcript of Oral Argument at 64, Shurtleff<\/em>, 142 S. Ct. 1583 (No. 20-1800).<\/p>\n [28]<\/a> \u00a0Shurtleff<\/em>, 142 S. Ct. at 1593.<\/p>\n [29]<\/a> \u00a0 Good News Club v. Milford Cent. Sch., 533 U.S. 98, 131-32 (2001) (Stevens, J., dissenting) (\u201cSchool officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the .\u00a0.\u00a0. risk\u201d of \u201cintroduc[ing] divisiveness and tend[ing] to separate young children into cliques that undermine the school\u2019s educational mission.\u201d); id. <\/em>at 144-45 (Souter, J., joined by Ginsburg, J., dissenting) (\u201c[T]here is a good case that Good News\u2019s exercises blur the line between public classroom instruction and private religious indoctrination.\u00a0.\u00a0.\u00a0.\u201d).<\/p>\n [30]<\/a> \u00a0 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 863 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).<\/p>\n\n
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