Soured Lemon: What's next for the State's religion clauses?

Article I, § 24 of the California Constitution provides that "[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." This article is a clear statement emphasizing that our State Constitution "is, and always has been, a document of independent force" (People v. Brisendine (1975) 13 Cal.3d 528, 549-550), and that the rights embodied in and protected by the State Constitution are not invariably identical to the rights contained in the Federal Constitution. (Am. Acad. Of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 325, citing Raven v. Deukmejian (1990) 52 Cal.3d 336, 351-355.) "Past cases make clear that even when the terms of the California Constitution are textually identical to those of the federal Constitution, the proper interpretation of the state constitutional provision is not invariably identical to the federal courts' interpretation of the corresponding provision contained in the federal Constitution." (Am. Acad. Of Pediatrics, supra, 16 Cal.4th at 325-26, citing Raven, supra, 52 Cal.3d at 352-354; Brisendine, supra, 13 Cal.3d at 548-551.)

This is all in line with a basic principle of federalism; the Federal Constitution provides a floor, not a ceiling, for rights; states, as the laboratories of democracy, are free to enact greater protections than those required by the Federal Constitution. (See Mills v. Rogers (1982) 457 U.S. 291, 300 ["Within our federal system the substantive rights provided by the Federal Constitution define only a minimum. State law may recognize liberty interests more extensive than those independently protected by the Federal Constitution."] New State Ice Co. v. Liebmann (1932) 285 U.S. 262, 311 [Brandeis, J., dissenting] ["It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."]; see also Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018) pp. 16-20 [arguing that state courts should resist simply interpreting State constitutional protections in lockstep with the Federal Constitution and that American constitutional law benefits from a diversity of approaches under state constitutions.])

This article will consider the Religion Clauses of the California Constitution (art. I, § 4, art IX, § 8 & art. XVI, § 5) and their relationship to the Free Exercise and Establishment Clauses set out in the First Amendment to the U.S. Constitution.

Article I, § 4 of the California Constitution provides in relevant part "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion."  Article IX, § 8 of provides that "[n]o public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State." Article XVI, § 5 forbids official aid to any "religious sect, church, creed, or sectarian purpose . . . ."

Taken together, the California Religion Clauses set out a framework around free exercise and the separation of church and state that has significant overlap with the Federal Religion Clauses. However, as set out in art. I, § 24 of the California Constitution, the scope of the protections set out in the State Constitution must be interpreted independently, and given their own force. California case law suggests that the unique framework of the California Religion Clauses are not simply redundancies with no independent existence from the Federal Religion Clauses.

Some California decisions have concluded that the California Religion Clauses were satisfied in separation-of-church-and-state challenges if the test applied by the Supreme Court in Establishment Clause challenges, from Lemon v. Kurtzman (1971) 403 U. S. 602 ("the Lemon test"), was satisfied. (See, e.g., East Bay Asian Local Dev. Corp. v. St. of Calif. (2000) 24 Cal.4th 693, 718-721.) That is, some California Courts construed the scope of the separation of church and state in the California Constitution to be identical to that set out in the First Amendment's Establishment Clause.   

The Lemon test generally required a court to consider "whether the government action had a secular legislative purpose, whether its 'principal or primary effect must be one that neither advances nor inhibits religion" and whether in practice it fosters an excessive government entanglement with religion."

(Kennedy v. Bremerton Sch. Dist. (2022) 597 U.S. 507, 572 ([Sotomayor, J., dissenting] [cleaned up].) The former Federal Establishment Clause test also considered whether a reasonably informed observer would perceive the challenged practice as a state endorsement of religion. (Id. at 569.)

However, the Lemon test (and the related endorsement test) were recently repudiated by the Roberts Court in Kennedy v. Bremerton Sch. Dist. (2022) 597 U.S. 507, 534-535 - a case involving a public-high-school football coach who was fired after kneeling at midfield after football games to pray, with his players sometimes joining him, and with the coach sometimes giving inspirational speeches with religious overtones and references. The Kennedy Court stated that, for the purposes of federal Establishment Clause analysis, the clause "must be interpreted by reference to historical practices and understandings." (Kennedy, supra, 507 U.S. at 535 [cleaned up].) This approach has been referred to by the Court and commentators as the "history and tradition" test.

This change in the long-standing test used in analyzing federal Establishment Clause challenges was significant and unprecedented, at least in the view of the dissenting opinion. (See id. at 571 [Sotomayor, J., dissenting].) It is likely fair to forecast that the significant change in the doctrine will likely lead to an altered scope of the Establishment Clause in future federal cases.

What does this change mean for the California Religion Clauses? As noted, the California Religion Clauses are textually unique from the Federal Religion Clauses. Does the scope of the California Religion Clauses shift with the change in the Federal doctrine? Or do California courts have an independent obligation to interpret a separate document of separate force differently? The test set out by the U.S. Supreme Court in evaluating Federal Establishment Clause challenges directs courts to look to the "history and tradition" surrounding challenged practices. If California courts adopted that approach in construing the California Religion Clauses, would that require a different, localized examination of the history and tradition of challenged practices in California?

I. The California Religion Clauses as Construed in the California Courts

Despite the apparent clarity of art. I, § 24, California courts have been somewhat inconsistent as to whether the Religion Clauses set out in our state Constitution differ in scope from the First Amendment's Religion Clauses.

In some cases, California courts have emphasized the uniquely strict separation of church and state set out in the California Religion Clauses. For example, in Fox v. City of Los Angeles (1978) 22 Cal.3d 792, 797 the California Supreme Court found that the City of Los Angeles's practice of illuminating "a huge cross" on City Hall during Christmas and Easter Sundays violated the California Religion Clauses--specifically, the "no preference Clause" of article I, § 4. The Fox Court observed that "[i]n the California Constitution there is no requirement that each religion always be represented. To illuminate only the Latin cross, however, does seem preferential when comparable recognition of other religious symbols is impracticable." (Id.)  The Fox court did also consider federal precedent, noting that in Allen v. Hickel (1970) 424 F.2d 944, 948, the court had held that "[t]he Government may depict objects with spiritual content, but it may not promote or give its stamp of approval to such spiritual content." 

Justice Bird, concurring in Fox, noted that, taken together, article I, § 4 and article XVI, § 5 of the State Constitution made clear that "the delegates to the 1849 [California Constitutional] Convention committed this state to the fundamental policy of neutrality in matters of religion. . . . By its express terms, what (art. I, § 4) mandates is the perpetual guarantee of the free exercise and enjoyment of religion; what it prohibits is discrimination against, or preference in favor of, one religion as opposed to another. . . . It would be difficult to imagine a more sweeping statement of the principle of governmental impartiality in the field of religion." (Fox, supra, 22 Cal.3d at 800 [Bird, J., concurring] [cleaned up].)

In Sands v. Morongo Unif. Sch. Dist. (1991) 53 Cal.3d 863, the California Supreme Court again emphasized the separate scope of the California Religion Clauses (as compared to the Federal Establishment Clause) in finding that religious invocations and benedictions at public high-school graduation ceremonies were unconstitutional. The Court concluded, applying the Lemon test, that the practice violated the First Amendment's Establishment Clause. (Id. at 871-880.) The Court then turned to conduct a separate analysis of whether the challenged practices violated the California Religion Clauses. "Although federal cases may supply guidance for interpreting [the California Religion Clauses], California courts must independently determine [their] scope." (Id. at 820.) As Justice Bird had done in Fox, the Court looked to both article I, § 4 and article XVI, § 5 together in finding the religious invocations and benedictions at public-school graduation ceremonies violative of the California Constitution. In examining the California Religion Clauses, the Sands court emphasized the unique language of the clauses, especially the "no preference" clause in article I, § 4: "Two other provisions of the state Constitution, having no counterparts in the federal charter, provide additional guarantees that religion and government shall remain separate. Section 4 of article I guarantees the '[f]ree exercise and enjoyment of religion without discrimination or preference . . . .' . . . . California courts have interpreted the clause as being more protective of the principle of separation [of church and state] than the federal guarantee."

In other cases, the California Supreme Court has suggested that the protection of separation of church and state set out in the California Religion Clauses is essentially identical with that set out in the Federal Establishment Clause. For example, in East Bay Asian Local Dev. Corp., supra, 24 Cal.4th at 718, the California Supreme Court considered whether a statutory exemption of noncommercial property belonging to religious organizations from landmark designation and preservation violated the federal and/or state Constitutions. The Court first concluded, applying the Lemon test, that the exemption did not violate the Federal Establishment Clause. (Id.) The Court then turned to the California Religion Clauses. The Court, while acknowledging that "the California Constitution is a document of independent force [and] the rights it guarantees are not necessarily coextensive with those protected by the federal Constitution," ultimately concluded that the California Religion Clauses did not offer different or greater protection of the separation of church and state than the Federal Establishment Clause: "We do not believe that the protection against the establishment of religion embedded in the California Constitution creates broader protections than those of the First Amendment. We are satisfied that the California concept of a 'law respecting an establishment of religion' (art. I, § 4) coincides with the intent and purpose of the First Amendment establishment clause." (Id.) The Court also rejected arguments based on other portions of art. I, § 4 and art. XVI, § 5 of the California Constitution that the exemption ran afoul of the particular and separate protections set out in the California Constitution. (Id. at 718-721.)

Justice Mosk, in dissent, argued that the majority had failed to heed art. I, § 24 of the California Constitution in giving the unique framework of the California Religion Clauses its due: "Our state constitutional law is analytically distinct and more protective of church-state separation than the First Amendment. It is undisputed that provisions of the California Constitution are not dependent for their meaning on the federal Constitution. . . . The different history of our charter justifies the difference in interpretation. . . . Thus, although federal cases concerning the First Amendment may be illustrative in interpreting our state constitutional provision, they are not dispositive. . . . Specifically, while I agree that the [Lemon test] offers guidance for analyzing the exemption herein under our state establishment clause, I disagree that we are exclusively bound by any particular application of that test by federal authority." (East Bay Asian Local Dev. Corp., supra, 24 Cal.4th at 723 [Mosk, J., dissenting] [cleaned up].) Justice Mosk emphasized, as the California Supreme Court had previously in Fox and Sands, that the Court had an obligation to consider the specific text set out in art. I, § 4, and art. XVI, § 5, that the unique language and history behind the California Religion Clauses required a separate constitutional analysis, and that the Court should not simply adopt, wholesale, the federal Establishment Clause analysis. (Id. at 723-727 [Mosk, J., dissenting].)

II. The Supreme Court Discards the Lemon Test and Adopts the "History and Tradition" Test in Kennedy v. Bremerton School District

In Kennedy, supra, 597 U.S. 507, the U.S. Supreme Court considered a public-high-school football coach's claim that he had been improperly suspended because he had, among other things kneeled and prayed at the 50-yard line of the school's football field after games, sometimes with his players sometimes joining him, sometimes giving religiously tinged speeches. (Id. at 507-520.) The Court concluded that the coach's speech and conduct were protected by the First Amendment's Free Speech and Free Exercise clauses, and rejected the public school's argument that it had a legal duty, in order to avoid an Establishment Clause violation, to stop the coach from carrying out public displays of prayer immediately after games on school property, while still in his role as a public-school coach. (Id. at 543-44.)

In considering whether the coach's actions presented an Establishment Clause issue, the Court rejected the analysis of the lower courts, which had applied the Lemon test. The majority opinion stated that "[w]hat the District and Ninth Circuit overlooked . . . is that the shortcomings associated with this ambitious, abstract, and ahistorical approach to the Establishment Clause became so apparent that this Court long ago abandoned Lemon and its endorsement test offshoot." (Kennedy, supra, 597 U.S. at 535 [cleaned up].) The Court then announced (or reiterated, in its view) a different test: "In place of Lemon and the endorsement test, the Court has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings." (Id. [citing Town of Greece, N.Y. v. Galloway (2014) 572 U.S. 565, 576] [cleaned up].) This test, in the Court's view, would more "faithfully reflect the understanding of the Founding Fathers." (Id. at 536.)

"An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some exception within the Court's Establishment Clause jurisprudence. . . . Torcaso v. Watkins, 367 U.S. 488, 490 . . . (1961) (analyzing certain historical elements of religious establishments); McGowan v. Maryland, 366 U.S. 420, 437-440 . . . (1961) (analyzing Sunday closing laws by looking to their 'place . . . in the First Amendment's history'); Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 680 . . . (1970) (analyzing the 'history and uninterrupted practice' of church tax exemptions)."

(Kennedy, supra, 597 U.S. at 536 [cleaned up].)

It's worth noting that this "history and tradition" test appears to be a variation of the "history and tradition" approach the U.S. Supreme Court has used in other recent decisions. (See Dobbs v. Jackson Women's Health Org. (2022) 597 U.S. 215, 231; New York State Rifle & Pistol Assn. (2022) 597 U.S. 1, 21.)

III. The California Religion Clauses After Kennedy

So the Lemon test, which Justice Scalia once compared to an undead "ghoul," may finally be dead. (Lamb's Chapel v. Center Moriches Union Free Sch. Dist. (1993) 508 U.S. 384, 397 ["Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District."] [Scalia, J., concurring].) Although, it is worth keeping in mind, as Justice Scalia suggested, that it was always difficult to truly be done with the Lemon test. (Id. ["The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. . . . Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him."] [Scalia, J., concurring].) (It is almost Halloween, after all.)

If the Lemon test is indeed dead, the California Religion Clauses--especially as to the scope of the protection of separation of church and state, are potentially in terra incognita. California courts confronting separation-of-church-and-state challenges after Kennedy that raise claims under both the Federal Establishment Clause and the California Religion Clauses will be confronted with a difficult set of questions. Does the protection set out in the California Religion Clauses shift in lockstep with the doctrinal shift in the U.S. Supreme Court's Establishment Clause approach? Is there a sound argument for that? As noted in Fox, Sands, and other cases, the California Religion Clauses use different language and have a different structure than the First Amendment's Religion Clauses. And as noted in California decisions, the California Constitution and its Religion Clauses have a unique history, presented in a separate document with independent force. Do the unique text and history of the California Constitution support an approach in lockstep with the federal Constitution?

But let's assume for the moment that California courts do in fact adopt the new federal test wholesale, following the conclusion in East Bay Asian Local Dev. Corp. that there is no daylight between the federal Establishment Clause and the California Religion Clauses. If a California court were to apply the "history and tradition" test set out in Kennedy in construing the California Religion Clauses, what would be the relevant "history and tradition" that the California court should study in construing the California Religion Clauses? The history and tradition surrounding the Federal Religion Clauses? Or the unique and localized history and tradition of California, our Constitutional Convention, and the evolution of our State Constitution?

If California courts adopt the U.S. Supreme Court's call to look into the history and tradition of challenged practices, would California courts be looking to "faithfully reflect the understanding of the Founding Fathers" of the United States or the founders of our State Constitution? (Kennedy, supra, 597 U.S. at 536.) The Kennedy court emphasized that the analysis must be "focused on original meaning and history . . . ." (Id.) So, in the context of the California Religion Clauses, would that mean California courts should look to the original meaning and history of the U.S. Constitution or the California Constitution? Even under a textualist approach, the differing structure and language, the differing time and context of ratification, and the holistic reading of the state Constitution would appear to potentially support different readings of the separate text of the California Religion Clauses, rather than a lockstep conforming to the federal Religion Clauses in the First Amendment. One could observe that Monterey in 1849 was not Philadelphia in 1788. (Cf. Sutton, supra, at pp. 16-20; Liu, State Constitutions and the Protection of Individual Rights: A Reappraisal (2017) 92 N.Y.U. L. Rev. 1307, 1338 ["A state court may recognize individual rights that go unrecognized by the Supreme Court because of textual or historical considerations unique to that state or its constitution."]; Carrillo & Smith, California Constitutional Law: The Religion Clauses (2011) 45 U.S.F. L. Rev. 689, 773 ["Within [the limits of Federal law], an independent state-law analysis is permitted. Indeed, strong reasons exist for a California religion analysis to account for the distinct terms and history of the state constitution religion provisions."].)

Making this analysis potentially even more complicated are these possible wrinkles: What occurs if California courts conclude that the California Religion Clauses provide greater protection for the separation of church and state than the Federal Establishment Clause, given art. I, § 4's "no preference clause," and the overall structure of the California Religion Clauses? How would this work in a case like Kennedy, where the Establishment Clause/separation-of-church-and-state issues must be balanced against Free Exercise concerns--a tension often presented in separation-of-church-and-state cases? While the Federal Constitution provides a floor for protection of rights, the Federal Constitution also overrides state constitutions in the event of a conflict, under the Supremacy Clause. (U.S. Const., art VI, cl. 2; see Reynolds v. Sims (1964) 377 U.S. 533, 585 ["Where there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls."].) So a state constitutional protection of the separation of church and state greater than that set out in the Establishment Clause could, it seems, potentially run afoul of an overriding and countervailing Federal Free Exercise claim.

These are some of the knotty questions that may confront California courts in future separation-of-church-and-state cases. Our State's courtrooms all fly two flags: one with 50 stars and 13 stripes, and one with just one star, one stripe, and one grizzly bear. These two flags are worthwhile reminders that we operate in a federal system with overlapping, and sometimes different constitutional protections. We should be mindful of the overlaps--and the differences. "Federalism secures to citizens the liberties that derive from the diffusion of sovereign power." (Bond v. United States (2011) 564 U.S. 211, 221 [cleaned up].)