Although "much criticized," the Lemon test still governs cases alleging violations of the Establishment Clause. Am. Atheists, Inc. v. Port Auth. of N.Y. & N.J., 760 F.3d 227, 238 n. 12 (2d Cir.2014). Under Lemon, for "government action to satisfy the neutrality principle of the Establishment Clause, it must (1) 'have a secular purpose,' (2) have a 'principal or primary effect that neither advances nor inhibits religion,' and (3) 'not foster an excessive government entanglement with religion.'" Id. at 238 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)) (internal ellipses omitted). Jewish People of Westhampton Beach V. Village, 778 F. 3d 390 (2nd Cir. 2015).
To decide whether a governmental action violates the Establishment Clause, we must weave together three main jurisprudential threads. The first thread is the "Lemon test," named after the Supreme Court's decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under that test, the action comports with the Establishment Clause only if it satisfies [Lemon's] three distinct prongs. Smith v. Jefferson County Bd. of School Comr's, 788 F. 3d 580 (6th Cir. 2015).
The next thread is an "endorsement" analysis, first discussed by Justice O'Connor in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). As Justice O'Connor intended, Lynch, 465 U.S. at 688, 104 S.Ct. 1355 (O'Connor, J., concurring), the Sixth Circuit "has treated the endorsement test as a refinement or clarification of the Lemon test." Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir.1999); see also, e.g., Satawa v. McComb Cnty. Rd. Comm'n, 689 F.3d 506, 526 (6th Cir.2012) (explaining the Sixth Circuit's application of the Lemon test); Am. Civil Liberties Union v. Grayson Cnty., 591 F.3d 837, 844-45 (6th Cir.2010) (using the Lynch discussion as guidance in applying the Lemon test). Justice O'Connor explained that Lemon's first prong, which focuses on the government's purpose, really asks "whether [the] government's actual purpose is to endorse or disapprove of religion." Lynch, 465 U.S. at 690, 104 S.Ct. 1355 (O'Connor, J., concurring). While the first Lemon prong is subjective, the second is objective. It asks "whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval." Id. If either the purpose or effect of the government activity is to endorse or disapprove of religion, the activity is unconstitutional. Id. Smith v. Jefferson County Bd. of School Comr's, ibid.
Excessive entanglement — Lemon's third prong — remains relevant. Under Justice O'Connor's test, such entanglement would still be grounds for striking down the activity, even if there is no hint of endorsement or disapproval. See id. at 689, 104 S.Ct. 1355. Since then, however, the Court has "recast Lemon's entanglement inquiry [in the public school context] as simply one criterion relevant to determining a statute's effect." Mitchell v. Helms, 530 U.S. 793, 808, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (plurality opinion) (citing Agostini v. Felton, 521 U.S. 203, 232-33, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)). Smith v. Jefferson County Bd. of School Comr's, ibid.
The final jurisprudential thread — most recently seen in Town of Greece v. Galloway, ___ U.S. ___, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014), but relevant since Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) — involves a historical approach. It takes the view that "it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change." Town of Greece, 134 S.Ct. at 1819. Smith v. Jefferson County Bd. of School Comr's, ibid.
We must be mindful of both the context of the government action and the specific circumstances surrounding it. See Van Orden v. Perry, 545 U.S. 677, 700, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring in the judgment) (emphasizing that the Establishment Clause inquiry "must take account of context and consequences"); Lee v. Weisman, 505 U.S. 577, 597, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) ("Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one."). Smith v. Jefferson County Bd. of School Comr's, ibid.
In cases construing the Establishment Clause, courts have frequently employed the reasonable-observer test to discern "whether a 'reasonable observer,' aware of the history and context of the community in which the conduct occurs, would view the practice as communicating a message of government endorsement or disapproval" of religion. Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542, 551-52 (10th Cir.1997); accord Green v. Haskell Cty. Bd. of Comm'rs, 568 F.3d 784, 799 (10th Cir. 2009). At least at first blush, the reasonable-observer test would appear to be congruent with symbolic-speech jurisprudence; in that area, courts have focused on whether a display communicates a message that is identifiable by reasonable persons. See Johnson, 491 U.S. at 409, 109 S.Ct. 2533 (assaying the perspective of the "reasonable onlooker"); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (describing expressive conduct as that which, "in context, would reasonably be understood by the viewer to be communicative"); Holloman, 370 F.3d at 1270 (noting that the expressiveness of an appellant's conduct is determined from the viewpoint of a "reasonable person"); see also Spence, 418 U.S. at 410, 94 S.Ct. 2727 (looking to the perspective of "the great majority of citizens" viewing the display); cf. Walker, 135 S.Ct. at 2251 (considering "observers' reasonable interpretation of the messages conveyed by" specialty license plates). Cressman v. Thompson, 798 F. 3d 938 (10th Cir. 2015).
As the contours of the Establishment Clause's reasonable-observer test have been sketched over the years, it has become clear that this reasonable observer is not the everyday casual gawker. See, e.g., Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 n. 16 (10th Cir.2008) ("Undoubtedly, the 'objective observer' is presumed to know far more than most actual members of a given community."). For example, the knowledge of the Establishment Clause's "reasonable observer" is not "gleaned simply from viewing the challenged display," O'Connor v. Washburn Univ., 416 F.3d 1216, 1228 (10th Cir.2005) (quoting Wells v. City & Cty. of Denver, 257 F.3d 1132, 1142-43 (10th Cir.2001)); the reasonable observer is also aware of "the nature and history of the ... community, the circumstances surrounding the [display's] placement ... [,][the] community's response ... [and the] motivation for seeking the erection of the [display]," Green, 568 F.3d at 800; see generally Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1104 (10th Cir.2010) (Kelly, J., dissenting from denial of reh'g en banc) (collecting cases that discuss the breadth of the reasonable observer's knowledge). Cressman v. Thompson, ibid.
THIS CASEBOOK contains a selection of 143 U. S. Court of Appeals decisions that analyze, discuss and interpret the First Amendment's Establishment Clause. The selection of decisions spans from 2002 to the date of publication.