Ignoring Purpose, Context, and History: The Tenth Circuit Court in American Atheists, Inc. v. Duncan

I. INTRODUCTION All Americans have or will encounter a public display including religious imagery during their lives. Many of our most recognized memorials use religious symbols as the primary or exclusive element in displays honoring heroes who made the ultimate sacrifice protecting everything we hold dear.1 Such displays are scattered throughout American communities, which, due to aggressive challenges to the constitutionality of these displays, increasingly face a choice between removing the displays or fighting expensive legal battles brought by advocates of strict separation of church and state.2 In American Atheists, Inc. v. Duncan, the Tenth Circuit Court of Appeals faced such a challenge and held that thirteen memorials that used a white Latin cross to honor fallen Utah State Troopers unconstitutionally endorsed Christianity.3 Because the court misinterpreted and misapplied its own precedent4 in analyzing the history and context of the monuments and discounted the importance of the monuments' court-recognized secular purpose without explanation,5 Duncan was wrongly decided and should be reversed. Part II of this Note reviews the context and history of Establishment Clause jurisprudence. Part III details the facts, procedural history, and holding of Duncan. Part IV analyzes Duncan; it discusses how the court misinterpreted and misapplied its own precedent by downplaying the secular context of the memorials at issue, erroneously discounting the weight of a recognized secular purpose in creating the memorials and giving too little weight to Utah's own religious treatment of the Latin cross. Part V concludes. II. CONTEXT AND HISTORY OF ESTABLISHMENT CLAUSE JURISPRUDENCE "Congress shall make no law respecting an establishment of religion . . . ."6 The Establishment Clause of die First Amendment was originally understood by some Founders and early courts merely to prohibit a federally established church - one funded and favored by the government with authority to coerce membership in and compliance with that religion's practices and tenets.7 Modern Establishment Clause jurisprudence only started evolving in the 1940s, when die clause was made applicable to the states by Cantwell v. Connecticut? Seven years later the court decided Everson v. Board of Education, which held: 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[,] . . . pass laws which aid one religion, aid all religions, or prefer one religion over another[,] . . . force [or] influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. . . . Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations .... 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."9 Everson laid the foundation for various later Establishment Clause rationales, including neutrality,10 coercion,11 strict separation,12 endorsement,13 and entanglement.14 Even with Everson as a foundation, the Court adopted no single framework to analyze Establishment Clause challenges until 1971 in Lemon v. Kurtzman.15 The "Lemon test," as it is now commonly known, assessed whether the challenged government action: (1) had a secular purpose, (2) had the "principal or primary effect" of either "advanc[ing] [or] inhibit[ing] religion," and whether it (3) "foster[s] an excessive government entanglement with religion."16 Government action that fails any of the prongs is an unconstitutional establishment of religion.17 Lemon was almost immediately criticized, even by its author, Chief Justice Burger, and the Court abandoned Lemon until 1984 - when it was reestablished as the primary Establishment Clause framework.18 Courts have continued to refine and clarify Lemon's prongs since 1984. …