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Article Excerpt
TABLE OF CONTENTS
INTRODUCTION I. THE SUPREME COURT'S ANALYSIS OF RELIGIOUS DISPLAYS UNDER THE ENDORSEMENT TEST A. Lynch, Allegheny, and Capitol Square B. The Role of Intent in the Religious Symbol Cases II. EXISTING CRITIQUES (AND ONE PROMINENT DEFENSE) OF THE ENDORSEMENT TEST III. THE EXPRESSIVE AND THE PERFORMATIVE: SPEECH ACT THEORY AND BEYOND A. Speech Act Theory and Its Relevance B. The Dependence of Meaning on Context, and the Inability of Context to Delimit Meaning C. Context and Consensus IV. CONTEXT AND CONSENSUS IN THE COURTS A. The Supreme Court's Struggles with Context 1. Immediate Physical Setting 2. Overall Holiday Context 3. Historical Context B. The Courts' Struggles with Social Context and Consensus V. CAN THE PROBLEM OF CONTEXT BE SOLVED? A. Per Se Rules Permitting or Forbidding Religious Symbols on Public Property 1. Per Se Rule Permitting Religious Symbols 2. Per Se Rule Forbidding Religious Symbols B. A Presumption against Religious Symbols on Government Property CONCLUSION
INTRODUCTION
The treatment of Establishment Clause challenges to displays of religious symbolism by the Supreme Court and the lower courts is notoriously unpredictable: a creche is constitutionally acceptable if it is accompanied by a Santa Claus house and reindeer, a Christmas tree, and various circus figures, (1) but unacceptable if it is accompanied by poinsettias,(2) a "peace tree," (3) or a wreath, a tree, and a plastic Santa Claus. (4) A menorah may be displayed next to a Christmas tree, (5) or next to Kwanzaa symbols, Santa Claus, and Frosty the Snowman, (6) but not next to a creche and a Christmas tree. (7) A number of commentators have suggested that this disarray can be blamed largely on the chaotic state of the Supreme Court's Religion Clauses doctrine. (8)
Since the 1980s the Supreme Court has recognized that the public display of religious symbols may, in some circumstances, violate the Establishment Clause. (9) The Supreme Court's guidance as to when such a display will violate the Establishment Clause has been vague, however; in applying what has come to be known as the "endorsement test," the Court has essentially declared that public displays of religious symbols are impermissible if they convey a message of endorsement of religion. (10) Yet, beyond stating that it is necessary to examine the context of the display, the Supreme Court has failed to provide a satisfactory way of determining what message a given religious symbol or set of symbols actually conveys. This failure has led to a widely recognized inconsistency, confusion, and apparent subjectivity in the Supreme Court and lower court cases dealing with public displays of religious symbolism.
This Article draws upon linguistic theory to explain why the task of discerning the meaning of a display of religious symbolism has proven so unmanageable. In particular, it draws on the branch of linguistic theory known as "speech act theory," as well as some postmodern critiques of, and elaborations on, speech act theory. (11) The defining feature of speech act theory, as I use the term here, is that it emphasizes the effects of linguistic utterances and the contextual features that give rise to those effects, rather than the intent behind the utterances. These features of speech act theory make this branch of linguistic theory particularly relevant to the analysis of meaning in religious symbol cases, because the endorsement test is similarly concerned primarily with the (endorsing) effect of religious symbolism and with the contextual features that may create or negate an endorsement effect.
Approaching the endorsement test through the lens of speech act theory leads to the conclusion that any constitutional test that is concerned with determining the "meaning" of religious displays will ultimately fail to produce a stable, predictable jurisprudence. This is because meaning, in those cases, must rely on the context of the display, yet context, itself, is inherently unstable, elusive, and incapable of formulation into clear legal rules. Moreover, the difficulties stemming from the endorsement test's reliance on context are aggravated in cases involving religious symbolism by two factors: first, the absence of any meaningful role for the potentially stabilizing element of subjective intent in the vast majority of religious symbol cases; and second, the diversity of religious perspectives, accompanied by an extreme lack of societal consensus regarding the appropriate degree of governmental acknowledgement of religion.
This critique of the endorsement test is unique in its linguistic focus and in its emphasis on the specific problem of context. Unlike most existing critiques, the analysis set out in this Article suggests that the indeterminacy and unpredictability in the application of the endorsement test are not a result of doctrinal incoherence, thinly veiled politics, or unconscious bias; rather, they are inherent in the problem of attempting to determine the social meaning of symbolic government action against the backdrop of extreme viewpoint plurality, without the potentially stabilizing element of subjective intent to guide the inquiry. This approach thus differs from existing critiques of the endorsement test, which have primarily focused on the problematic construct of the "reasonable observer," established by the Court as the perspective from which the meaning of a symbolic act or display is to be judged. (12)
Additionally, because this critique reveals difficulties inherent in any highly context-dependent inquiry into meaning, it may suggest a more general critique of attempts to build a jurisprudence based on the symbolic dimensions of government action. Such attempts have been the focus of the philosophy known as "expressivism," which has been the subject of intense scholarly consideration in recent years. (13) This Article is thus primarily an argument about one aspect of Establishment Clause doctrine; at the same time, however, it is situated within the literature on "expressivism" and "social meaning," examining the extent to which the central hermeneutic questions raised by those strains of thought have gone unanswered in the literature, just as they have in the specific context of the endorsement test. Nonetheless, this Article does not intend to question--as several recent and important commentaries have done (14)--whether it is truly meaningful to understand the government to be "sending messages," whether it is accurate to view official action as having "expressive dimensions," or whether it is proper for Establishment Clause doctrine to be concerned with governmental "messages"; instead, this Article assumes that, at least in the narrow class of cases dealing with public displays of religious symbols, the endorsement test's focus on the symbolic or "expressive" harm caused by religious symbols is entirely appropriate. In other words, whatever the merits of expressivism generally, this Article takes the position that the religious symbolism cases, with their near-exclusive focus on symbolic or stigmatic harm, are the paradigmatic cases for applying the expressivist model. (15)
Part I of this Article introduces the endorsement test through a summary of the two principal Supreme Court cases dealing with religious symbols, Lynch v. Donnelly (16) and County of Allegheny v. ACLU, (17) as well as of Capitol Square Review & Advisory Board v. Pinette, (18) a case involving a religious symbol on public property in which the Court did not apply the endorsement test. Part I notes, and seeks to explain, the relatively insignificant role played by subjective intent in the endorsement test as it has been applied by the Supreme Court. Part II reviews the existing critiques of the endorsement test and one prominent defense of it--namely, the expressivist approach. Part III sets out the theoretical framework that this Article contends is most useful to understanding the failures of the endorsement test: speech act theory and its postmodern elaborations. It also explains in greater detail why these theories are relevant to the endorsement test. Part III leads to the central conclusion of this Article, which is that the instability and unmanageability of the endorsement test are attributable to its inevitable dependence on context. Part IV then demonstrates how the Supreme Court has struggled with context in its religious symbol cases. Finally, in Part V, this Article asks whether the problem of context can ever be satisfactorily resolved and, concluding that it cannot, proposes an incremental change that would help to regularize and rationalize the Supreme Court's jurisprudence in this area.
I. THE SUPREME COURT'S ANALYSIS OF RELIGIOUS DISPLAYS UNDER THE ENDORSEMENT TEST
A. Lynch, Allegheny, and Capitol Square
The two key Supreme Court cases establishing the test for determining the constitutionality of religious symbols are Lynch v. Donnelly and County of Allegheny v. ACLU. In Lynch v. Donnelly, the Supreme Court considered the constitutionality of a nativity scene erected by the City of Pawtucket, Rhode Island as part of a Christmas display. According to the opinion of the Court, written by then-Chief Justice Burger, the display comprised, in addition to the creche at issue in the case,
many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that read[] "SEASONS GREETINGS." (19)
After conducting a historical review of the various ways in which the government has officially acknowledged religion or celebrated religious holidays in America, the majority found that the display, "viewed in the proper context of the Christmas Holiday season," was constitutional. (20) In particular, the Court stated that the display did not represent an attempt by the government to advocate for one particular religion, but rather merely celebrated the national holiday and depicted the historical origins of Christmas; as a result, the Court found that a secular purpose animated the display, that the display did not have the effect of impermissibly advancing religion, and that it did not lead to excessive entanglement of religion and government. (21)
Although the majority did not apply the (as yet unformulated) "endorsement test" in Lynch, Justice O'Connor, in her concurrence, outlined the analytical framework that would come to be known as the endorsement test. She concluded, for her part, that in this particular context, surrounded by secular symbolism and understood as part of a larger government celebration of the holiday season, the creche did not represent a governmental endorsement of religion. (22) She then set forth the endorsement test, which, she stated, requires a determination whether the challenged display "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." (23) In determining the meaning conveyed by a display under the test, Justice O'Connor explained, courts should examine both what the government "intended to communicate" and "what message the ... display actually conveyed"; these subjective and objective components of the message correspond to the purpose and effect prongs of the Lemon test. (24)
In County of Allegheny v. ACLU, the Supreme Court considered the constitutionality of two different displays. The first was a creche scene, which the county had permitted a private religious group to place on the "Grand Staircase" of the county courthouse during the Christmas holiday season. (25) In addition to the creche itself, the display included a wooden fence surrounded by red and white poinsettias, two small evergreen trees decorated with red bows, and an angel holding a banner inscribed with the words "Gloria in Excelsis Deo." (26) The exhibit was accompanied by a sign that read, "This Display Donated by the Holy Name Society." (27) Each year the county sponsored a Christmas carol program, which was performed against the backdrop of the creche scene. (28)
The second challenged display was an eighteen-foot-tall menorah, also owned by a private group, which was placed outdoors at the entrance to a government building, next to a forty-five-foot-tall Christmas tree owned by the city. (29) At the foot of the Christmas tree was a sign that read, "Salute to Liberty," and then continued: "During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom." (30)
In a set of fragmented opinions, the Supreme Court in Allegheny held that the creche display violated the Establishment Clause, whereas the menorah did not. (31) Although a majority of the Court signed on to Justice Blackmun's application of the endorsement test to declare the creche display unconstitutional, there was no majority rationale for finding the menorah constitutional.
The most important aspect of the Allegheny case for purposes of this Article is the Justices' emphasis on the importance of context in determining whether the creche display had the effect of endorsing religion. While asserting that "[t]here is no doubt ... that the creche itself is capable of communicating a religious message," (32) the Court proceeded to examine the physical setting of the display to determine whether such a message actually was conveyed. Because this creche, unlike the creche that was found to be constitutional in Lynch v. Donnelly, was displayed alone, without any countervailing secular symbols that might help to negate the endorsement effect, the Court found that it did, in context, endorse Christianity. The Court also pointed out that the poinsettia "frame" surrounding the creche, "like all good frames, serve[d] only to draw one's attention to the message inside the frame. The floral decoration surrounding the creche contribute[d] to, rather than detract[ed] from, the endorsement of religion conveyed by the creche." (33) Thus, in Allegheny, the Court relied on the physical context of the religious symbol to determine that it had the effect of endorsing religion, whereas in Lynch, it had found that certain contextual features--that the display was surrounded by a Santa Claus, several reindeer figures, and other relatively secular elements--gave it a primarily secular, non-endorsing effect.
Similarly, in evaluating the constitutionality of the menorah, Justice Blackmun's opinion emphasized the presence of the Christmas tree nearby, which made the display into a generic holiday celebration, rather than a sectarian Jewish display celebrating Chanukah. (34) Justice Blackmun also noted that the sign saluting liberty further detracted from any possible inference of endorsement. (35) Finally, drawing on the historical context to better understand the meaning of Chanukah, Justice Blackmun pointed out that Chanukah, like Christmas, had both secular and religious dimensions; (36) in Justice Blackmun's view, this fact further lent credibility to the notion that the display was a nonsectarian holiday tribute rather than a governmental endorsement of religion. Justice O'Connor, in her concurrence, argued that the menorah is "the religious symbol of a religious holiday," thus disagreeing with Justice Blackmun's emphasis on the secular aspects of Chanukah, but nonetheless found the menorah display to be constitutional based on largely the same contextual factors that Justice Blackmun had highlighted. (37)
Both Justices Blackmun and O'Connor agreed that it is the perspective of the "reasonable observer" that must be taken into account in determining whether a given display conveys a message of endorsement. (38) As Justice O'Connor later formulated it, the concept of the reasonable observer is intended to reflect the fact that the Establishment Clause is concerned with "the political community writ large"; as such, the endorsement inquiry does not focus on "the actual perception of individual observers," but on a kind of idealized reasonable person. (39) This idealized person is assumed to know the religious meaning of the symbol at issue, whether the property where it is situated is public or private, and how the relevant forum has historically been used. (40)
But how, in practice, is one to determine or prove what the reasonable observer would perceive? Justice O'Connor has stated that the question whether the government has endorsed religion, while it may be partly elucidated by evidentiary submissions, is "in large part a legal question to be answered on the basis of judicial interpretation of social facts." (41) She has therefore emphasized that the endorsement test should not focus on real individuals, "who naturally have differing degrees of knowledge." (42) Thus, the reasonable observer's perception is not to be gleaned merely from surveying individuals in the community; beyond this, though, it is not easy to say how a judge is to put herself in the position of the reasonable observer. One can only conclude, perhaps, that one element of the "context" to which the endorsement test looks is the understanding or consensus of the society as a whole.
The result in Capitol Square Review and Advisory Board v. Pinette, another recent case examining the constitutionality of a religious symbol on public property, did not depend on application of the endorsement test, but all of the Justices still considered whether the relevant symbol, in its particular physical context, conveyed an endorsement of religion. In Capitol Square, the Supreme Court considered whether the Establishment Clause was violated by the display of an unattended cross by a private group in a traditional public forum, near the seat of government. (43) The Latin cross at issue was erected by the Ku Klux Klan in Capitol Square, "a 10-acre, state-owned plaza surrounding the statehouse in Columbus, Ohio." (44) The Capitol Square Review and Advisory Board, which was charged with regulating public access to the forum, had initially denied the Klan a permit to erect the structure in Capitol Square, because it believed that to allow erection of the cross would result in an Establishment Clause violation. (45) The Board thus justified its content-based prohibition of the Klan's symbolic speech with its claimed compelling state interest of complying with the Establishment Clause. (46) While apparently recognizing that the Supreme Court had previously determined, in Lamb's Chapel v. Center Moriches Union Free School District (47) and Widmar v. Vincent, (48) that no Establishment Clause violation results when the state permits private religious speech in a true public forum, the Board had argued that in this case, the proximity of the forum to the "seat of government" might lead to the perception that the cross was sponsored by the state; a message of endorsement therefore might be conveyed if the cross were permitted. (49)
The Court disagreed with the Board's reasoning, holding that that the Board had violated the Klan members' free speech rights. (50) In so concluding, a plurality of the Court, composed of Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas, categorically stated that private religious speech in a true and properly administered public forum cannot violate the Establishment Clause, no matter what the proximity to the traditional seat of government or the likelihood of "mistaken" perceptions of government endorsement of religion by observers. (51) Justice O'Connor, by contrast, would have applied the endorsement test even in the context of private religious speech in a public forum, but she concurred in the judgment on the ground that no inference of endorsement was reasonable, given the public forum context. (52) Justice O'Connor opined that, because the "reasonable observer" should be presumed to know that the forum at issue was traditionally a public forum, open to all comers, that observer would not perceive an endorsement of religion in the City's decision to allow the Klan to use the space on the same terms as all other groups; she declined, however, to join the categorical assertion that there would be no set of circumstances under which private religious speech in a public forum could violate the Establishment Clause. (53)
Justices Stevens and Ginsburg dissented. (54) Justice Stevens believed that a message of endorsement was conveyed by the cross display due to the cross's proximity to the seat of government and the nature of unattended religious symbols on public property, which are easily taken to be supported by the government entity that controls the property. (55) Justice Ginsburg similarly found that the unattended nature of the cross near the statehouse, in the absence of a sufficient disclaimer, created an inference of endorsement. (56)
Although the result in Capitol Square did not involve an application of the endorsement test, (57) the central question in the case, and the dispute among the Justices, still revolved around whether the symbol of the cross, in its particular physical context, connoted an endorsement of religion. Thus, Justice Scalia, writing for the plurality, essentially held that the public forum context always negates any possible message of endorsement that might otherwise be derived from private religious speech on public property. (58) The concurrence and dissent, on the other hand, rejected the majority's per se rule but differed in whether they viewed the particular features of the physical context in the case at hand as supporting or negating an inference of governmental endorsement of religion.
Finally, in Van Orden v. Perry, (59) decided last Term, the Supreme Court did not explicitly apply the endorsement test to a display of the Ten Commandments on the grounds of the Texas State Capitol. (60) Instead, disavowing the appropriateness of any particular test, Justice Rehnquist, writing for the plurality, stated that the display had to be considered in light of "the nature of the monument and ... our Nation's history" of official acknowledgement of religion. (61) Justice Breyer concurred in the judgment, providing the fifth vote to uphold the display. (62) In his concurrence, he also declined to apply the endorsement test, but he analyzed the display in light of the physical and historical context in order to determine whether a religious or secular message was conveyed--an analysis that is functionally equivalent to the endorsement inquiry." (63)
B. The Role of Intent in the Religious Symbol Cases
In outlining her version of the endorsement test, Justice O'Connor explained that a display may violate the Establishment Clause if it has the effect of endorsing religion (or a particular religion), or if the government has the intent of endorsing religion in erecting or permitting the erection of the display. (64) As Justice O'Connor observed in Lynch:
[F]or [some listeners] the message actually conveyed may be something not actually intended. If the audience is large, as it always is when government "speaks" by word or deed, some portion of the audience will inevitably receive a message determined by the "objective" content of the statement, and some portion will inevitably receive the intended message. (65)
For those who receive the former message, in other words, it seems no less accurate to say that that message is the "meaning" of the display. A demonstrable intent on the part of government actors to endorse religion may thus render a display unconstitutional, but the absence of religious intent will not be dispositive.
In practice, however, the role of intent in deciding the religious symbol cases has been decidedly minimized. When the Supreme Court held the creche display unconstitutional in Allegheny, and when lower courts have held religious displays to be unconstitutional, they have usually done so based on the display's effect--the message "actually conveyed" by the display--and not based on the message the display was intended to convey. (66)
There are most likely a number of reasons for the de-emphasis on subjective governmental intent in the religious symbol cases. (67) When discussing religious displays, it is usually difficult to talk about subjective intent in any meaningful way. First, as several other commentators have pointed out, it often seems strange, if not completely pointless, to talk about the intent of "the government," a body that is in fact composed of a variety of individuals who often have different and even conflicting motivations--indeed, some of those individuals might themselves have multiple motivations for acting as they do. (68) In the context of religious symbol displays, in particular, there is rarely even a written record of any such motivations, or anything akin to the legislative history from which courts may attempt to discern the purposes of those displays. (69) Second, even if there were such a record, a jurisprudence that focuses on governmental intent may invite officials to disguise or revise their "true" motives in order to create the appearance that they are acting in accordance with constitutional standards. (70) Third, as Steven Smith has lucidly pointed out, the question of what a given government official "intended to communicate" by her actions is often simply unanswerable: by passing legislation or approving a permit, an official often does not intend to communicate anything at all--she intends to effect a particular state of affairs. "Indeed," Smith argues, "it seems more plausible to think of legislators and executive officers as wielders of power than as mere senders of messages, and thus as primarily concerned with the substantive consequences of their acts rather than with the messages which such acts may happen to communicate." (71) Fourth, courts and commentators have pointed out that some legislators are religious individuals, and that those individuals are often motivated to act, at least in part, in accordance with their religious beliefs; to suggest that legislation is unconstitutional merely because it is in part reflective of those religious beliefs is thus, in a sense, to deny religious individuals the right to participate in public life. (72)
Finally, the nature of religious displays, as physical structures often standing alone and thus "left to speak for themselves," (73) dictates that the subjective intent of the party responsible for the symbol will figure less into the interpretive equation than it does when one is trying, for example, to interpret meaning in the context of a face-to-face conversation. Although all of the Supreme Court cases dealing with religious symbols illustrate this principle, perhaps the most striking example is Capitol Square. In contrast to Justice Scalia's insistence that "mistaken" perceptions--even reasonable ones--were not relevant to the Establishment Clause analysis, (74) the concurring and dissenting Justices argued that the privately owned religious symbol on public property strongly lent itself to an inference of endorsement, irrespective of whether the government intended to endorse religion or merely to maintain a public forum, because it stood alone--because, as Justice Ginsburg said, "[n]o human speaker was present to disassociate the religious symbol from the State," and because there was no other accompanying sign or symbol to elucidate its meaning. (75) In other words, the concurrences and dissents suggest that, in interpreting the meaning of a bare symbol, without any indicators of the motive or mindset of the party responsible for it, subjective intent is simply less relevant, not to mention less discernible.
Indeed, the very fact that Capitol Square was treated as a case involving a religious symbol at all demonstrates that subjective intent is relatively unimportant in religious symbol cases. The Latin cross at issue in that case was erected by the Ku Klux Klan, and the governmental actors involved were naturally aware of the Klan's sponsorship. Accordingly, the cross was undoubtedly more a symbol of a political viewpoint than of religious belief. Justice Thomas, the only Justice to discuss this fact in any detail, noted that, while he agreed with the majority's decision due to the way in which the case was presented--as an Establishment Clause case--the message of the cross was primarily political, not religious. (76) In fact, Justice Thomas demonstrated through a brief recapitulation of the history of the symbol that the connotations of the cross, as used by the Klan, were only marginally religious. (77) The subjective intent of the Klan members who erected the cross on Capitol Square was not predominantly religious at all. In Capitol Square, subjective intent was thus arguably irrelevant in determining the meaning...
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