Uneven “Neutrality”: Dual Standards and the Establishment Clause in Johnson v. Poway

I. INTRODUCTION "May a school district censor a high school teacher's expression because it refers to Judeo-Christian views while allowing other teachers to express views on a number of controversial subjects, including religion and anti-religion?"1 In 2010, a federal district court held that a school district may not.2 In 2011, the Ninth Circuit held otherwise.3 The case that produced these contrary rulings, Johnson v. Poway Unified School District, involved a high school teacher's claim that the school district he worked for had violated the Free Speech and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The school district had ordered the teacher to remove two banners from his classroom wall because they contained references to God while allowing other teachers to exhibit noncurricular classroom displays, many of which featured religious themes and other potentially controversial subject matter. The Establishment Clause requires government neutrality toward religion,4 but the Ninth Circuit focused on potential problems with the teacher's display and justifications for other similar displays. This resulted in content-based religious discrimination rather than the neutrality the Establishment Clause requires. For that reason, Johnson was wrongly decided and should be overturned. This Note will proceed as follows. Part II provides a brief overview of Establishment Clause jurisprudence as it relates to government-sponsored religious displays. Part III summarizes Johnson v. Poway, including the facts of the case, the district court opinion, and the Ninth Circuit's reversal. Part IV analyzes the Ninth Circuit's decision, discussing the similarities between two displays involved in the case, the different standards applied to each display, and how these dual standards brought about a discriminatory result. Part V concludes that the Ninth Circuit's ruling is problematic because it potentially discriminates against specific religious viewpoints, thus violating the First Amendment. II. THE ESTABLISHMENT CLAUSE AND RELIGIOUS DISPLAYS The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion."5 This clause applies to the states under the Fourteenth Amendment.6 Since the 1980s, the Supreme Court has interpreted the Establishment Clause to require religious neutrality rather than strict separation of church and state.7 Simply put, "government must not take sides between particular religions or denominations, or between belief or unbelief."8 Establishment Clause cases, which often involve challenges to government- sponsored religious displays, have been fairly inconsistent9 because of the Supreme Court's inability to articulate a test that yields fair and predictable results.10 In 1971, the Supreme Court attempted to establish such a test.11 Under what has become known as the Lemon test, government actions touching on religion must 1) "have a secular legislative purpose," 2) have a "primary effect . . . that neither advances nor inhibits religion," and 3) "not foster 'an excessive government entanglement with religion.'"12 Then, in a 1984 concurrence, Justice O'Connor proposed what has become known as the endorsement test,13 which the Court adopted as "the standard by which future religious display cases should be judged."14 The endorsement test is essentially a modified Lemon test, combining the purpose and effect prongs and eliminating the entanglement prong.15 Under the endorsement test, a government-sponsored religious display violates the Establishment Clause if it "has the effect of endorsing religion"16 - either because the government "subjectively intends to endorse or disapprove religion," although its actions may not actually have that effect, or because government action is "reasonably understood to endorse or disapprove religion," although such an effect may not have been intended. …