Eric Rassbach is Deputy General Counsel at the Becket Fund, which filed an amicus brief in support of the Town of Greece.

Sometimes there comes a “Hail Mary moment” in a lawsuit, where one side, facing imminent disaster, stakes everything on one desperate, final gambit.

The respondents’ brief in Town of Greece marks just such a dramatic, last-minute change in tactics. This change speaks volumes about the current state of Establishment Clause jurisprudence, while also significantly raising the stakes.

In the Second Circuit, the respondents prevailed on the theory that the Town’s legislative prayers, which were delivered primarily by Christian clergy members, unconstitutionally “endorsed” Christianity in violation of the Lemon-derived endorsement test. That test asks whether a “reasonable observer” would believe that the government action at issue endorses religion.

Now, however, the respondents have completely abandoned the Lemon/endorsement test – indeed, they do not even argue it in the alternative. Instead, they ask the Court to strike down legislative prayer on the ground that it coerces adult citizens to engage in a religious practice – a dramatic expansion of the coercion test that no lower court has ever adopted.

What gives? Why would the respondents abandon the theory they raised in their complaint, and on which they prevailed below, and instead urge a new theory that has never succeeded in any lower court?

The answer is simple: They know that they lack five votes to affirm the lower court’s version of the endorsement test – indeed, more than five sitting Justices have criticized that test. They also know that the legislative prayers in this case, which were delivered by volunteer Christians, Jews, Bahá’ís, and Wiccans, are far more inclusive than the prayers upheld in Marsh v. Chambers, which were delivered exclusively by a paid Presbyterian minister. Thus, they have decided that the only way to avoid a bad ruling on Marsh and the endorsement test is to aim for a dramatic expansion of the coercion test.

Before assessing whether the new theory will work, it is worth noting that there are several good things that come from the respondents’ turnabout. First, their full retreat from Lemon is proof positive that the Lemon test, despite the fact that it is the binding Establishment Clause standard in twelve circuits, is not just a pernicious, self-contradictory, and purely subjective test, but a useless one as well. If the respondents can’t come up with a plausible endorsement argument at the merits stage in the Supreme Court, should they have been allowed to get all the way through the certiorari stage relying on it? The respondents say that overruling Lemon would “wreak havoc” in the lower courts, but the lower courts say that it is Lemon that is wreaking havoc. The respondents’ concession is further reason for the Court to replace Lemon as the starting point for Establishment Clause analysis with the historical approach we outline in our amicus brief.

Second, the respondents’ volte-face narrows the case before the Court considerably. The respondents now agree with the petitioner that the case is solely about coercion. The remaining dispute concerns only what the test for coercion should be, and how that test should be applied to the facts in this case.

But the Court should beware: the respondents’ proposed standard is no ordinary coercion test. Instead, they want the Court to make the following unprecedented rulings:

apply a version of the coercion test that has never been applied by any court to federal, state, or municipal legislative prayer, even by courts that have held legislative prayer policies unconstitutional;

been applied by any court to federal, state, or municipal legislative prayer, even by courts that have held legislative prayer policies unconstitutional; extend the child-focused approach of Lee v. Weisman and Santa Fe Independent School District v. Doe to all adults, an argument they are making for the first time at the Supreme Court;

and to all adults, an argument they are making for the first time at the Supreme Court; adjudicate the rights of third parties who did not appear in the district court or on appeal (indeed, the respondents spend ten of their sixty-one pages talking about other people’s purported problems, and exactly two paragraphs on the two actual plaintiffs);

render judgment that the Town’s volunteer chaplain policy coerces both the two plaintiffs and the various third parties they mention to participate in prayer; and

hold that the two adult plaintiffs are still being coerced to participate in religious exercise even when they exercise their right to opt out.

That is a lot of new Establishment Clause doctrine to introduce into a case that was previously about whether the Town’s volunteer chaplain policy would be perceived by a reasonable observer as endorsing Christianity.

Indeed, the respondents’ new coercion test – that merely being present during a volunteer chaplain’s prayer, even with a right to opt out, constitutes coercion – would apply to all manner of government statements that citizen listeners happen to disagree with. Under their test, obvious targets for secularist plaintiffs would be legislative prayers at the federal, state, and municipal levels, the recitation of the Pledge of Allegiance at governmental meetings or in school, the national motto “In God We Trust” on the currency, the cry “God Save This Honorable Court,” Ten Commandments monuments, and prayers at presidential inaugurals, among many other references to “God” in government speech. All of these have already been the subject of Establishment Clause litigation and would be again – under a new theory – if the respondents’ rule were adopted.

But there would be other claims of coercion as well, because people have religious objections to many government practices, and “coercing” someone to participate in government speech to which she objects on religious grounds is just as forbidden by the First Amendment. Jehovah’s Witnesses could sue over being “coerced” to participate in the Pledge of Allegiance; schoolchildren who have religious objections to learning about gay rights or sexual health could sue over being “coerced” in violation of their beliefs; non-Christian visitors could sue over being “coerced” to encounter crosses in government-owned cemeteries.

The typically American response to this kind of ideological disagreement is the rule of West Virginia Board of Education v. Barnette, which involved the question of whether schoolchildren could be compelled – on pain of expulsion – to say the Pledge of Allegiance (and which the respondents’ brief does not cite). There, the Court held that the government is permitted to speak, but dissenters must be allowed the right to opt out without penalty. The respondents already have that right. But they claim that merely showing up to the meeting a few minutes late or sitting quietly while others pray subjects them to “coercion,” because the meetings are small and they must endure disapproving stares from other citizens. That is not the rule of Barnette, and it is not the rule of any other court that has applied the coercion test.

The respondents also say that there is no way for citizens to know whether a penalty might be imposed when they opt out, and that their resulting fear of potential retaliation is enough to constitute coercion. But this also proves too much. There are any number of actions citizens can take that might lead them to fear retaliation by government officials, including opposing them for re-election, or criticizing them in public. But that fear, taken alone, does not constitute coercion. The government official actually has to retaliate.

The respondents also lamely claim that third parties may be afraid to bring claims, and therefore the Court should simply imply coercion of those third parties. But whether a plaintiff was actually coerced has to do with whether the government has – objectively speaking – imposed penalties on the plaintiffs. And even if the two plaintiffs in this case could sue over their own fears or those of third parties, such a ruling would at the very least require reversal of the Second Circuit and remand for trial on the factual question of whether the Town’s policy was actually coercive.

This is not to say that the two plaintiffs or others could never have a coercion claim. The Town’s policy does not render it immune from lawsuits. If a plaintiff could prove that he had been coerced to participate in a volunteer chaplain’s prayer on threat of government penalty, he could easily prevail. But that is not what the respondents here allege; rather, they seek a rule that municipal legislative prayer is inherently coercive, regardless of any actual government penalty.

Finally, the respondents say that unless the Court adopts their rule, government officials will be able to badger citizens with statements of religious doctrine. But as we point out in our brief, one of the four elements of an “establishment of religion” as the founding generation understood that term was government adoption of official religious doctrine. The hypothetical badgering official would contravene this element.

So the Court should reject the subjective, religion-hostile, and ahistorical Lemon test and replace it with a historical approach that looks to the four elements of an “establishment of religion” at the Founding. With respect to the coercion element of that approach, it should adopt a test that tracks Barnette – government may speak, but dissenters may opt out without penalty. But whatever the Court does it should not let the respondents’ overbroad coercion test sneak into Establishment Clause doctrine. That would be the surest recipe for havoc of all.

Recommended Citation: Eric Rassbach, Symposium: Desperate measures in Town of Greece, SCOTUSblog (Sep. 25, 2013, 11:00 AM), https://www.scotusblog.com/2013/09/desperate-measures-in-town-of-greece/