No Coercion Test

2012-08-10 16:02:48

During the 1970s and 1980s, an growing number of legal commentators began to criticize the dominant Lemon v. Kurtzman (1971) test for evaluating claims under the First Amendment’s Establishment Clause. The Lemon test forbade any law whose ‘‘primary effect’’ was to ‘‘advance religion,’’ a principle that the Court used to strike down prayer and other religious elements in public schools. Conservative critics of Lemon, convinced that the test is both analytically incoherent and hostile to religion, have proposed as one alternative that the government may advance, favor, or endorse religion as long as it does not coerce anyone to assent to a religious belief or participate in a religious exercise. This standard would validate many government actions that create no real coercive pressure on citizens: creches or menorahs in municipal holiday displays, posting of the Ten Commandments in public buildings, and official statements with religious content such as the national motto ‘‘In God We Trust.’’

The Court first expanded its Establishment Clause interpretation beyond coercion in the original school prayer case, Engel v. Vitale (1962). Although the state there argued that teacher-led prayers in public schools were permissible because students could decline to participate, the Court answered that ‘‘the Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion.’’ Likewise, the Court struck down a government display of a creche in County of Allegheny v. American Civil Liberties Union (1989), even though Justice Kennedy’s dissent pointed out that ‘‘[p] assersby [were] free to ignore’’ the creche. The majority held that notwithstanding the absence of coercion, the government ‘‘may not celebrate Christmas ... in a way that endorses Christian doctrine.’’

Most recently, the majority of the justices confirmed their reading of the Establishment Clause as extending beyond coercion, when they prohibited a courthouse display of the Ten Commandments that— although not coercive—reflected a government purpose to promote the religious views contained in the Commandments (McCreary County v. American Civil Liberties Union [2005]). However, four justices dissented on the ground that ‘‘[n]o one was compelled to observe or participate in any religious ceremony or activity.’’ With the replacement of Justice O’Connor—the key swing vote and proponent of the broader ‘‘no endorsement’’ test—by the more conservative Samuel Alito, the future Court may still narrow the Establishment Clause’s restrictions to cases of government coercion.

Even if a no coercion standard is ultimately adopted, proponents likely would disagree on some of its specifics. The Court in Engel, after stating that the Establishment Clause reached beyond ‘‘direct coercion,’’ noted that classroom prayers involved subtle, ‘‘indirect’’ pressure even if students in theory could opt out. In Lee v. Weisman (1992), the Court held that school-sponsored prayers at graduation ceremonies also were coercive because there was ‘‘social pressure’’ on a dissenter to stand silently during the prayer— which might be interpreted as acquiescence in its sentiments— even though no one had to join in reciting it. In contrast to this broad definition of coercion, Justice Scalia and two other dissenters would have limited the Establishment Clause to cases of coercion ‘‘by force of law and threat of penalty.’’

The coercion test also is ambiguous in cases about government financial aid to religious entities, which involve arguable coercion either way: funding of religious entities requires taxpayers to support them (along with other entities), but denying funding to religious entities while funding secular alternatives arguably pressures citizens to receive education or social services in a nonreligious setting when they would prefer a religious provider.

The debate over the coercion test includes arguments over the original understanding of the Establishment Clause. Proponents of the coercion analysis point to the long history of government actions passively endorsing or favoring religion. These include presidential proclamations of prayer and thanksgiving, invocations at legislative and court sessions, and the appointment of congressional chaplains— many of which were adopted or approved by the First Congress, which also drafted the First Amendment. Such practices, it is argued, can only be explained by a principle allowing noncoercive endorsements of religion.

Opponents of the coercion test argue that, as in other instances, the framers may have failed to follow all the implications of their constitutional principles, permitting religious actions supporting generalized Protestantism largely because there were few non- Protestants to object. Opponents also point to point to state-level disputes in which programs of support for religion were rejected as ‘‘establishments,’’ even though they did not force anyone to participate in a religion unwillingly. For example, in the 1780s, Virginia and Maryland rejected proposals for taxsupported payments to churches even though, in Professor Laycock’s words, the taxpayer had ‘‘the right to designate the recipient of the tax, to pay the tax to secular uses, and in Maryland, to escape the tax altogether by declaring unbelief.’’ Proponents of the coercion test respond that the Virginia and Maryland bills, like any others involving mandated tax payments, were coercive and were disapproved on that basis.

Turning to analytical arguments, proponents of the coercion test claim that because government can and does endorse many nonreligious moral ideals, forbidding noncoercive endorsements of religion creates ‘‘hostility to religion.’’ For example, if government can celebrate the secular aspects of Christmas but not the religious ones, this will arguably make government an agent of secularizing Christmas. Opponents of the coercion test respond that keeping government ‘‘secular’’ does not make it antireligious, and that ample means exist for private groups to advance religion and counter secularization through displays without government sponsorship.

Opponents of the coercion test also argue that permitting noncoercive endorsements of religion is difficult to harmonize with another central Establishment Clause principle: that government may not prefer one religious view over others. The Court has called such ‘‘denominational’’ neutrality ‘‘the clearest command of the Establishment Clause’’ (Larson v. Valente [1982]). The conflict arises because virtually any government acknowledgment of religion, however passive or noncoercive, inevitably acknowledges a particular religion. Even generalized references to ‘‘God’’ leave out nontheistic religions and those that worship many gods, and they may also be objectionable to citizens whose religious beliefs are more particular and less ecumenical. Justice Scalia responded in McCreary that the principle of ‘‘no preference between religions’’ applied only to cases involving financial aid to religion, and not to noncoercive acknowledgments of a general monotheism. Proponents of noncoercive endorsements sometimes also suggest that government endorse many faiths—for example, that it erect a creche, a menorah, and other symbols during the winter holidays. But one can question whether such government actions could ever capture the range and nuances of America’s many religious views.


References and Further Reading

  • Laycock, Douglas, ‘‘Noncoercive’’ Support for Religion: Another False Claim about the Establishment Clause, Valparaiso Law Review 26 (1991): 37–69.
  • ———, ‘‘Nonpreferential Aid’’ to Religion: A False Claim About Original Intent, William and Mary Law Review 27 (1986): 875–921.
  • McConnell, Michael W., Coercion: The Lost Element of Establishment, William and Mary Law Review 27 (1986): 933–41.
  • Paulsen, Michael Stokes, Lemon Is Dead, Case Western Reserve Law Review 43 (1993): 795–863.

Cases and Statutes Cited

  • County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989)
  • Engel v. Vitale, 370 U.S. 421 (1962)
  • Larson v. Valente, 456 U.S. 228 (1982)
  • Lee v. Weisman, 505 U.S. 577 (1992)
  • Lemon v. Kurtzman, 403 U.S. 602 (1971)
  • McCreary County v. American Civil Liberties Union of Ky., 545 U.S. __ (2005)