Rounding out its current term, the U.S. Supreme Court recently issued two First Amendment rulings affecting the government’s intersection with private interests such as religion and freedom of expression. These rulings reflect the Court’s tensions on First Amendment issues, with a demonstrated willingness to abandon the long-questioned Lemon test for Establishment Clause religion cases as well as divergent views on when a private party becomes a “state actor” and therefore subject to First Amendment constraints. We address each decision in turn.
1. The Old Rugged Cross - American Legion v. American Humanist Association
On June 20, 2019, the Court issued its long-awaited opinion regarding the Bladensburg War Memorial. The Memorial in question is a thirty-two foot Latin Cross, originally built in 1925 to commemorate soldiers from Prince George’s County, Maryland (where the cross is located) who died during World War I. The cross was funded by private donations, and the land eventually became owned by the State of Maryland.
In a 7-2 decision, the Court held that the Memorial does not constitute an impermissible government establishment of religion in violation of the First Amendment to the U.S. Constitution. The opinion is welcome news for those wishing for a down-to-earth approach to Establishment Clause jurisprudence. However, with seven Justices writing separate opinions totaling 87 pages, the decision illustrates the disarray of the Court’s thinking rather than offering a predictable way forward. That said, the case offers several important take-aways.
Perhaps most importantly, while not explicitly overruled in this decision, the Lemon test for judging Establishment Clause violations is clearly on life support. Four of the six opinions call for overruling Lemon, seek to limit its applicability, or acknowledge its increasing lack of relevance. Lemon’s lack of influence has been waning since being decided in 1971, with the Court increasingly upholding traditional religious symbols and practices as they did in Town of Greece v. Galloway in 2014, upholding religious prayers at the beginning of legislative sessions. The present decision gives lower courts more freedom to decide Establishment Clause cases on a case by case basis, rather than apply what is increasingly an outdated and unworkable test.
Under the Court’s three-pronged test announced in Lemon v. Kurtzman (1971), a court is to examine whether a challenged government action (1) has a secular purpose, (2) has a “principal or primary effect” that “neither advances nor inhibits religion,” and (3) does not foster “an excessive government entanglement with religion.” While judicial application of the Lemon test has been troubling in many respects, a key problem here was the first prong of “secular purpose.”
As Justice Alito instructed in his majority opinion, courts must view legal challenges to religious symbols and monuments created years ago differently than challenges to the erection or adoption of new ones. Over time, it becomes inherently more difficult to determine the true motivations of those who erected the monuments. Second, purposes can multiply over time. While the cross is traditionally a symbol of Christianity, it took on additional meaning during World War I of commemorating all who perished. Third, purposes can evolve over time. A prime example is Paris’ Notre Dame Cathedral, which indisputably has become an iconic symbol of the very secular nation of France, even though it was conceived as a purely religious symbol and has operated for centuries as a church. Fourth, particularly when symbols and monuments have a longstanding presence in communities, removal itself is not a neutral act but rather evinces a hostility to the symbol and the religion it represents.
Additionally of note, both the majority opinion and Justice Gorsuch’s concurrence (joined by Justice Thomas) displayed the Court’s impatience with the concept of “offended observer” for legally sufficient standing to sue. The standing requirement entails an injury, causation, and redressability. But as Justice Gorsuch observed, “In a large and diverse country, offense can easily be found. Really, most every governmental action probably offends somebody.” To allow offended observers to decide which longstanding symbols and monuments can and can’t stay, such as through the American Humanist Society’s lawsuit, sacrifices the common sense and tolerance of the many for the quibbles of the few. More specifically, it cannot be said that such monuments are legally coercive, as other constitutionally problematic cases arising under the Establishment Clause (e.g., compulsory school prayer). As Justice Thomas states, the Bladensburg Cross “does not involve the type of actual legal coercion that was a hall-mark of historical establishments of religion.”
The good news here is that the Court has clearly set boundary lines against removal of historic religious symbols like the Bladensburg War Memorial, both for lower courts and potential litigants seeking to purge them. The bad news is more lies ahead for the U.S. Supreme Court’s Establishment Clause jurisprudence, particularly with respect to Lemon’s applicability – or not – in other religious contexts.
2. No “State Actor” Status for Private Cable Provider - Manhattan Community Access Corp. v. Halleck
On June 17, 2019, the U.S. Supreme Court issued a sharply divided 5-4 opinion, with the majority holding that a nonprofit’s contract with the local government did not cause the nonprofit to become a state actor, subject to the First Amendment’s “public forum” requirements.
The facts involved public access channels on Time Warner’s cable system in Manhattan, which are available to private citizens and are operated by a private entity. The public access channels are required as a government regulatory condition of cable franchising state law. The question before the Court was whether the private nonprofit’s operation of a public access channel on a cable system is a “traditional, exclusive public function,” thereby rendering such channel a “public forum” that the nonprofit – as a “state actor,” or arm of the government - may not restrict through editorial discretion. In other words, is the private nonprofit’s relationship with the government, by virtue of its cable system, so close that it essentially operates as an agent on the government’s behalf?
As Justice Kavanaugh explained through his majority opinion, a private entity can become a “state actor” only in a few limited circumstances, such as (1) when the private entity performs a traditional, exclusive public function, (2) when the government compels the private entity to take a particular action, and (3) when the government acts jointly with the private entity. The first category is implicated here, with the majority rejecting the argument that cable access channels render their operator a “state actor.” As the Court ruled:
It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function . . . the government must have traditionally and exclusively performed the function.
The Court further noted that “very few” functions fall into this category, such as running a company town, conducting elections, or outsourcing government functions like providing required medical care to prison inmates. Since operating a private cable access channel does not fit within such government “traditional and exclusive” operation, the private nonprofit did not become a “state actor” by doing so. It was therefore not required to provide “public forum” access without editorial discretion to reject certain views or speech.
Writing for the four dissenters, Justice Sotomayor characterized the majority as “swinging hard at the wrong pitch.” Justice Sotomayor defined the term “state actor” much more expansively, arguing based on property-related considerations that the private cable operator became a state actor by accepting the government’s license to provide the public access forum. In the dissent’s opposing view, certain constitutional duties “attach” when the government has an opportunity to conduct certain activities. These constitutional duties accompany those opportunities, even after the government transfers the opportunities to private parties because the government’s “property interest” remains.
This Supreme Court decision’s constitutional implications resound far beyond cable access channels. Why? Because this “state actor” constitutional analysis is increasingly used within other legal contexts to determine whether a private entity’s choice to interact with the government therefore requires that the person or organization renounce their potentially contrary constitutional rights. In Manhattan, a contrary ruling would mean that the cable access operator could not exercise its own free speech rights with respect to editorial decision-making and content.
Within public school and other government job contexts, employees may be viewed as state actors. But what about a public high school football coach who prays publicly after a football game? Is he doing so as a “state actor”? Former high school coach Joseph Kennedy was fired based on the school’s view that he was acting as a government employee rather than as a private person, when pausing after a football game to give thanks. Kennedy filed a federal lawsuit claiming that the school district violated his First Amendment rights of free expression and religious expression, but the court rejected his argument and agreed instead with the school. The U.S. Supreme Court declined to hear the case at this time, instead sending it back to the lower court for additional fact determinations.
Or what about private parties’ grants from the government? In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Supreme Court ruled that religious organizations may not be categorically disqualified from receiving government grants such as for playground materials. Consistent with Manhattan’s majority opinion, the school did not need to forgo its constitutional rights as a private entity in order to receive a generally available benefit with the government. Rather, and rightly so, it was allowed to freely continue exercising its constitutional religious freedom, as a religious school, while still receiving government benefits on par with secular grant recipients.
Taking these situations together, the “state actor” analysis is vulnerable to being distorted into a heavy burden on individual freedom depending on its application. Given our country’s trend of broadening the range of private actors’ involvement with government, our foundational constitutional rights could thus become restraints on individuals, businesses, and other entities who choose to receive funds from, operate programs with, or otherwise engage with the federal, state, or local government. In other words, the “state actor” analysis proposed by Justice Sotomayor could potentially lead people, nonprofits, and businesses into a trade-off between enjoyment of constitutional freedoms and civic participation. Manhattan therefore demonstrates potentially clashing constitutional freedoms and government regulation within our country’s contemporary jurisprudence.
 See, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006) (rejecting district attorney’s individual First Amendment protection for his grievance-related speech, based on his status as a public employee).
 See Kennedy v. Bremerton School District, http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/16-35801.pdf.