Lambeth and the Lemon Test: Part II

In an earlier post, I discussed the ruling in Lambeth v. Board of Commissioners of Davidson County (2005), focusing on the Purpose Prong of the . The context was the use of “” decals on police cars.

Here I address the Effect Prong: a government action must not have the primary effect (as distinct from its purpose) of advancing or inhibiting religion. In Lynch v. Donnelly (1984), a concurring opinion by Justice O’Connor proposed an “endorsement” test: the government action must not have the effect of endorsing religion. The ruling in Lambeth treats the endorsement test as an extension or alternative formulation of the Effect Prong.

In Lambeth, the Court notes the long usage of the national motto, on currency and elsewhere. It also notes various Supreme Court opinions that presume the national motto to be constitutional (though without actually ruling it so).

Finally, the Court argues that a reasonable observer would know the motto’s long usage and historical context, and would not regard the motto as a religious message. In effect, a reasonable observer would agree with the Aronow v. United States (1970) ruling that “the motto has no theological or ritualistic impact.” This conclusion is supported by the same logic, and by the same evidence, as it was in Aronow – which is to say, none whatsoever.

(Curiously, Lambeth quotes Aronow verbatim without actually citing it. Instead, it cites North Carolina Civil Liberties Union Legal Foundation v. Constangy (1991), which quotes Aronow.)

Based on its assumption about a reasonable observer, the Court finds that the motto does not have the primary effect of advancing religion. As in Aronow, the motto’s supposed lack of religious content renders it immune to First Amendment scrutiny.

What does Lambeth tell us about the Effect Prong, and how it applies to decals on police cars?

First, we see that the Aronow ruling has cast a long shadow. As long as the motto is deemed empty of all religious content, no First Amendment argument can prevail. Any challenge must address Aronow headlong — and preferably outside the Ninth Circuit, so that Aronow won’t be the controlling precedent.

Second: we must point out that the motto is widely perceived as religious. We can provide reams of evidence; public discussions of the decals invariably focus on the religious content, whether to protest it or to defend it. No one outside of a Federal courtroom treats the motto as a merely ceremonial or patriotic slogan with no religious meaning.

Third, the original language of Lemon, referring to an advancement of religion, is a poor fit. It would be hard to argue that a decal on a police car will have much effect on, say, church attendance. Rather, we should emphasize O’Connor’s endorsement test. On its face, the motto unmistakably asserts not only the existence of God, but a collective trust in Him. As Justice O’Connor wrote in Lynch:

Endorsement 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.

Finally, the Effect Prong is the most important one for us, because it could establish a broadly applicable precedent. The Purpose Prong depends so heavily on the circumstances of a particular case that even if we win against one Sheriff, we’d have to start all over with the next one. And as we shall see in the next installment in this series, the third prong will be difficult to apply in this context.

(Disclaimer: as noted before, I am not a lawyer, and nothing I say should be regarded as legal advice. I’m almost certain to get something wrong. I would much rather see a real lawyer writing commentary like this, but until that starts happening I can only try to fill the vacuum.)

Scott McKellar

Scott McKellar is a software developer and keyboard warrior in the St. Louis area.