American Atheists, Inc. v. Davenport: Endorsing a Presumption of Unconstitutionality Against Potentially Religious Symbols

I. INTRODUCTION The Tenth Circuit's decision in American Atheists, Inc. v. Davenport evinces the "hopeless disarray" of the Supreme Court's Establishment Clause jurisprudence.2 In recent years, the analysis for determining the constitutionality of arguably religious symbols on public property has been hi constant flux as the Supreme Court has inconsistently applied various Establishment Clause tests. A court applying the Supreme Court's Establishment Clause jurisprudence has available to it the Lemon test,3 the coercion test,4 the reindeer rule,5 the endorsement test,6 and "legal judgment."7 The uncertainty of Establishment Clause jurisprudence led the Tenth Circuit to split 5-4 in Davenport on the question of whether to rehear en banc a case heard by a Tenth Circuit panel, American Atheists, Inc. v. Duncan? in which the panel struck down a private organization's practice of honoring slain Utah Highway patrol officers by erecting crosses on public property as roadside memorials.9 Two dissenting opinions in Davenport highlight the issues with the endorsement test as applied by the Duncan court and signal that the decision furthers a circuit split on the issue of how to correctly apply, and even whether to apply, the endorsement test.10 This Note argues that the Tenth Circuit, by reaffirming its decision in Duncan, approved of an incorrect and incomplete application of the endorsement test. However, this Note also argues that the Tenth Circuit's decision is simply evidence of the need for clarification of Establishment Clause jurisprudence by the Supreme Court. Part II discusses the various Establishment Clause tests formulated by the Supreme Court. Part III discusses the facts, procedural history, and decisions of the Tenth Circuit in both Duncan and Davenport. Part IV argues that the Tenth Circuit incorrectly applied the endorsement test by presuming that the memorials were unconstitutional and by failing to consider constitutionally significant elements of the memorial at issue, including the names and badge numbers of the fallen officers, font size, and the purpose of the memorials. Additionally, Part IV argues that Supreme Court clarification of Establishment Clause jurisprudence is necessary to resolve a circuit split on the issues of whether to apply the endorsement test, and if so, how a proper endorsement test analysis should proceed. Part V concludes. II. SIGNIFICANT LEGAL BACKGROUND This Part describes the legal background of the Tenth Circuit's decisions in Duncan and Davenport and illustrates the complexity and confusion of Establishment Clause jurisprudence. A. The Lemon Test The Lemon test is a three-part test for analyzing Establishment Clause issues.11 Although Lemon is the "touchstone for Establishment Clause analysis,"12 the test has been repeatedly maligned13 and has generated much confusion.14 Nonetheless, the three-part Lemon test provides the starting point for analyzing Establishment Clause issues. The first part of Lemon requires that the government's action "have a secular legislative purpose."15 Second, the "principal or primary effect [of the government's action] must be one that neither advances nor inhibits religion."16 Finally, the governmental action "must not foster an excessive government entanglement with religion."17 Lemon analysis requires that all three prongs of the test be met for the government to avoid an Establishment Clause violation.18 E. The Reindeer Rule As a gloss over the Lemon test, the Supreme Court has found that public displays, even those that are clearly religious and have a sectarian message, may be constitutional if they are a part of a setting that "changes what viewers may fairly understand to be the purpose of the display . . . [and] negates any message of [governmental] endorsement of that content."19 This rule, termed here the "reindeer rule,"20 allows the government to avoid an establishment of religion by including "purely secular symbols" in a religious display. …