“You can’t plaster the national motto on police cars,” we cry. “It’s unconstitutional.”
Let’s not be so hasty.
It’s unconstitutional if the courts say so – but so far, they haven’t said so. If we want a better ruling, we need to figure out what went wrong with the previous ones.
One of those rulings is Lambeth v. Board of Commissioners of Davidson County (2005). This case was about the display of “In God We Trust” in 18-inch letters on the facade of a new Government Center in Davidson County, NC. The Fourth Circuit upheld the use of the motto.
In its ruling, the Court applied the Lemon test. First defined in Lemon v. Kurtzman (1971), this test has become a standard way of deciding whether a government action violates the Establishment Clause of the First Amendment. A government action must satisfy each of three conditions, known as “prongs:”
- It must have a secular purpose;
- Its principal or primary effect must neither advance nor inhibit religion;
- It must not foster an excessive entanglement with religion.
This post will concentrate on the first prong, and leave the other two for other posts.
In Lambeth, the plaintiffs alleged that the relevant discussion at Board meetings was dominated by religious concerns. The fact that the phrase is the national motto was mentioned but not emphasized. The Court nevertheless ruled that the first prong of the Lemon test was satisfied:
Although the Plaintiffs contend that their allegations are sufficient in this regard, we are constrained to disagree. Under applicable Supreme Court precedent, a “legitimate secular purpose” supporting a challenged governmental action will suffice to satisfy the Lemon test’s first prong. And, as we have previously observed, the demonstration of such a legitimate secular purpose is “a fairly low hurdle.” Indeed, we will deem the first prong of the Lemon test to be contravened “only if [the action] is ‘entirely motivated by a purpose to advance religion.'”
Under Lambeth, it isn’t enough to show that officials were motivated mostly by religion, or even overwhelmingly. As long as somebody mumbled something about “national motto,” they’re off the hook.
However there is an exception:
A legitimate secular purpose is thus sufficient to pass muster under the first prong of the Lemon test, unless the alleged secular purpose is in fact pretextual…In this matter, the Complaint fails to allege that the Board’s discussion of the phrase “In God We Trust” as the national motto was a pretext for its religious motivations, and thereby fails to allege that there was no legitimate secular purpose to the Board’s approval of the display. As a result, the display’s installation, on the basis of allegations of the Complaint, does not contravene the Lemon test’s first prong.
If the ostensibly secular purpose is just a pretext for an underlying religious motivation, then you’ve got a case. The problem is in showing that it’s just a pretext.
The Lemon test is typically applied to legislation. Legislatures and city councils leave a trail of meeting minutes, statutes, ordinances, and possibly videos, from which one may plausibly infer intent.
It’s not so easy to demonstrate the intent of executive actions, such as the decision of a County Sheriff to post decals on his patrol cars. Sheriffs make decisions on their own, and don’t have to consult anyone in a visible or public way. Chances are, at some point the Sheriff mentioned something about the phrase being the national motto, and you don’t have any good evidence that it was just a pretext.
That’s where discovery comes in.
In discovery you can demand that the defendants provide relevant evidence, often in the form of documents such as letters, memos, and emails. You can also ask for depositions, i.e. sworn testimony taken in the absence of a judge. Maybe you’ll find an email where the Sheriff says something like “We can get away with it because it’s the National Motto,” and you can spin that as pretextual.
The defendants can demand discovery from you as well. Responding to discovery requests can be so time-consuming and expensive that discovery is sometimes used as a weapon. The judge acts as referee to determine if a discovery request is excessive or unreasonable. However judges may be quite permissive about discovery requests. It doesn’t cost them anything, and they don’t want to give either side an excuse for an appeal.
Because you can use discovery to get evidence, you don’t need to have all the evidence when you file the initial complaint. However the defendants will very likely move to dismiss. If you don’t survive the motion to dismiss, you’ll never get to the discovery stage.
When considering a motion to dismiss, the judge must accept the plaintiffs’ factual allegations as true, and must view those allegations in the light most favorable to the plaintiffs. Whether those allegations are actually true is another matter, to be determined after discovery is complete. But if you don’t have a case even after being given the benefit of every doubt, your complaint will almost certainly be dismissed.
One reason that the Lambeth case failed is that the plaintiffs never alleged that the secular purpose was merely a pretext. They hoped to demonstrate such a pretext through discovery, but because they didn’t include the allegation in the initial complaint, they never got to the discovery stage.
A few weeks after the Lambeth ruling, the Supreme Court ruled in McCreary County v. American Civil Liberties Union (2005) that displays of the Ten Commandments in two Kentucky courthouses had an impermissibly religious purpose. In the ruling, written by Justice Souter, there are hints that a purpose need not be exclusively religious for a government action to be unconstitutional. The plaintiffs in Lambeth hoped to use this new precedent to their advantage when they appealed to the Supreme Court. However the supposed new standard didn’t really play a role in McCreary because the claimed secular purpose was clearly a pretext. The Supreme Court declined to review Lambeth.
What are the lessons so far?
First: If you’re going to use the first prong of the Lemon test (and you should if at all possible), you must allege that the government action was motivated entirely by religion. Not just predominantly. Entirely. The merest wisp of secular purpose, however perfunctory, may be enough to defeat your claim.
Second: You must allege that any purportedly secular purpose was merely a pretext for an underlying religious purpose. You probably can’t demonstrate that allegation from the public record, but make the allegation anyway. Once you survive the inevitable motion to dismiss, use discovery and hope to get lucky.
If the Sheriff has declined offers of “E Pluribus Unum” decals – equally patriotic but devoid of religious content – that decision may help to show that any ostensibly patriotic purpose was merely a pretext for an underlying religious purpose.
Third: Be prepared to respond to discovery requests. Keep track of any relevant emails, meeting minutes, blog posts, and FaceBook discussions, so that you can produce them later with a minimum of fuss. You may even be asked for financial information, if the defendants suspect you are a tool of George Soros or the Illuminati. Don’t assume that a discovery request will be disallowed just because it doesn’t make sense.
Finally (and always): Don’t trust everything you hear from me about law. I’m not a lawyer, and these are just my opinions and understanding. If you are planning to pursue any legal action, get yourself a real lawyer and listen to her.