Utah’s Supreme Court recently reviewed a difficult case in light of a new U.S. Supreme Court reading of the Establishment Clause of the U.S. Constitution.
The facts set out below were taken to be correct for purposes of adjudicating a motion to dismiss.
A young minor fourteen years of age, attended the Roy congregation of the Jehovah’s Witnesses. She had a social relationship with another congregant, which tragically devolved to the point where the congregant physically and sexually assaulted her.
The Church began investigating the victim to determine if she had engaged in the sin of “pornea”, or unclean sexual contact between persons who are not married.
In its investigation, four Elders of the Church convened a disciplinary hearing. She attended the hearing with her mother and stepfather. The Elders questioned her for forty-five minutes. After this they played a recording of the other congregant raping her.
Despite her crying and protesting against being forced to relive such a traumatic experience, the Elders continued to play the recording, stopping at intervals to question her about the details of what they heard.
As a result of this experience, she suffered loss of self-esteem, embarrassment, humiliation, and loss of enjoyment of life. She sued the Church for intentional or negligent infliction of emotional distress.
The Church filed a motion to dismiss, arguing that the claims were barred by the Utah and United States Constitutions.
The district court granted the motion to dismiss under the then existing U.S. Supreme Court precedent of Lemon v. Kurtzman, 403 U.S. 602(1971). Lemon sets forth a three pronged test for determining if a government action violates the First Amendment’s proscription against establishing a religion.
The test is as follows: 1) the action must have a secular purpose, 2) the effect of the action must neither promote nor inhibit religion, and 3) the action must not “foster” an excessive government entanglement with religion.
As a practical matter, many Establishment Clause cases have ended up focusing on the excessive entanglement portion of the Lemon test. So it was in this case. The district court found that the claims at issue “expressly implicate key questions regarding religious rules, standards, … discipline … and prominently how a religion conducts its ecclesiastical disciplinary hearings.” All this, in the court’s ruling, would involve an excessive government entanglement with religion. The court therefore, while it found the allegations in the case “disturbing”, felt compelled to dismiss the case.
The dismissal was upheld on appeal to the Utah Court of Appeals. The claimant then petitioned the Utah Supreme Court to hear the case. By the time was taken up by the Utah Supreme Court, an interesting turn of events had taken place. The U.S. Supreme Court had jettisoned the nearly 50 year old Lemon case.
The Supreme Court’s Establishment Clause jurisprudence has long recognized the need to safeguard religious organizations from secular manipulation and control, and on the other hand, to protect “temporal institutions from religious interference.”
The Supreme Court has stated “that the Religion Clauses [of the First Amendment] protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Thus, the First Amendment grants religions “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 199 (2012)(Alito, J., concurring).
The metaphor of a wall of separation between church and state is well known. But is that wall ironclad and completely impenetrable? The Supreme Court has acknowledged that “[n]o significant segment of our society and no institution within it can exist in a vacuum or in total and absolute isolation from all the other parts, much less from government.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984). Because of this, the Supreme Court has recognized that “total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.” Lemon at p. 614. So the wall of separation is more of a “blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” Id.
So, while there is a wall of separation between church and state, I sometimes think of it as more of a patchwork of an electric barrier here, a chain-link fence there, and a barb wire fence over yonder, all enclosed by a palisade of wooden stakes and iron railings, with loosely guarded openings and illicitly dug underground tunnels honeycombing the whole shebang, and volunteers and officials on each side of the barrier doing their best to patrol and protect the integrity of their respective domains. But this does not roll off the tongue quite as easily as simply calling it a wall. So we will stick with the wall metaphor, which is a far more elegant analogy.
Because of the difficulties involved in deciding Establishment Clause cases, the Supreme Court fashioned the aforementioned Lemon test, which was a well-intentioned effort to construct a coherent framework for adjudicating all future Establishment Clause cases. But this precedent itself was difficult to apply and sometimes led to seemingly contradictory results.
In the case of American Legion v. American Humanist Association, 139 S. Ct. 2067, the Supreme Court largely abandoned the Lemon test. The Court acknowledged that, while “the concept of a formally established church is straightforward, pinning down the meaning of a ‘law respecting an establishment of religion’ has proved to be a vexing problem.”
The Court acknowledged the ambitious aspirations inherent in the Lemon precedent, but noted that many subsequent cases have declined to follow it or have simply ignored it. The problem with the Lemon test, the Court explained, is that it is simply inadequate to deal with the wide variety of circumstances that arise in the real world.
For example, the Lemon test cannot explain why the Court has upheld prayers that open legislative meetings, the phrase “in God We Trust” on our currency, and even the opening of the Court’s own sessions with the pronouncement “God save the United States and this Honorable Court.”
Accordingly, Justice Kavanaugh, writing for the majority, held that courts should eschew rigid formulas (such as the Lemon test) in adjudicating Establishment Clause cases, and rather look to the principles underlying the clause. Courts should consider whether the nation’s historical practices and traditions shed light on or give guidance to an application of core principles in the context of any particular case.
This new approach may require the hard work of delving deeply into our nation’s history and traditions to discern which core Establishment Clause principles apply to any given case. But the flexibility of this approach may make it a more satisfying way to adjudicate difficult Establishment Clause issues on a case by case basis.
Because the district court had not performed this analysis in granting the motion to dismiss, Utah’s Supreme Court remanded the case back to the district court to perform this analysis in light of the new Supreme Court precedent.
See Williams v. Kingdom Hall, 2021 UT 18.
