Neutrality without a Tape Measure: Accommodating Religion after American Legion

This article argues that in recent years the Roberts Court has moved decidedly towards the accommodationist view of neutrality—providing greater protection for the free exercise of religion and a correspondingly narrower view of the limits that the Establishment Clause imposes on government-religion interactions. The Court’s recent decision in American Legion v. American Humanist Ass’n confirms this shift, repudiating Lemon and the endorsement test in the context of longstanding religious monuments, symbols, and practices. What test the Court will use to ensure neutrality going forward is less clear. Although seven Justices agreed that the Lemon and endorsement tests no longer hold sway in this context, the case spawned seven different opinions, including five concurrences setting out different Establishment Clause standards. A careful review of these opinions, though, reveals that a majority of the Court takes the Religion Clauses to require neutrality only between and among religions, not between religion and nonreligion. And the article contends that this is true regardless of how many religious and secular references there are and how close they are to one another (i.e., there is no spatial tape measure) and regardless of how long the government has engaged in the facially religious expression (i.e., there is no temporal tape measure). As Justice Gorsuch puts the point in his American Legion concurrence, “what matters when it comes to assessing [facially religious government speech] . . . is not its age but its compliance with ageless principles.” The first section of the article considers the development of the Court’s diverging views on neutrality, analyzing the jurisprudential underpinnings of both the strict(er) separationist and accommodationist positions. Those favoring the wall of separation model articulated in Everson rely on the history of religious establishments in the sixteenth and seventeenth centuries and the growing pluralism to argue that the Establishment Clause requires neutrality between religions as well as between religion and nonreligion. These concerns found expression in Lemon and the endorsement test. As the accommodationists on the Court noted repeatedly, though, criticisms of these Establishment Clause tests abounded among the Justices on the Court, the lower courts, and legal scholars. In their place, the accommodationists drew on a different aspect of the country’s history—the numerous and ongoing references to the Divine in the public square. This history of events at and subsequent to the founding demonstrated the meaning of the Establishment Clause—the Establishment Clause could not require neutrality between religion and nonreligion because religious references were and remain widespread in the public square. The second section explores the Court’s commitment to neutrality between and among religions, which is evident in the Roberts Court’s recent decisions broadening Free Exercise protections (including Tandon v. Newsom and the recent statement of four Justices in Kennedy v. Bremerton School District indicating a willingness to reconsider Employment Division v. Smith) and in American Legion’s movement towards an Establishment Clause test rooted in history and tradition. Both of these changes demonstrate that the majority neither views religious exercise as a wholly private endeavor nor takes noncoercive state-religion interactions to corrupt government or religion. Rather, American Legion emphasizes that the government may accommodate religious expression in the public square to “further the ideals of respect and tolerance embodied in the First Amendment.” Thus, going forward, the Roberts Court is poised to allow for greater noncoercive church-state interactions in the public square and to do so for a reason that frequently is overlooked—to promote morality and civic virtue for the good of the individual religious believer and the Nation as a whole. Contrary to the history of division and strife that frequently marked the strict separationist accounts of the Religion Clauses, the accommodationists on the Court view noncoercive religious expression in the public square as consistent with our country’s history and tradition.