Lemon on the Chopping Block: The Establishment Clause Implications of Shurtleff v. City of Boston – Daniel D. Benson

Posted by on Jun 8, 2022 in Per Curiam

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Lemon on the Chopping Block: The Establishment Clause Implications of Shurtleff v. City of Boston

Daniel D. Benson[1]

The Supreme Court’s recent decision in Shurtleff v. City of Boston is formally about the First Amendment’s “government speech” doctrine. The root of the dispute, however, is not primarily Boston’s disdain for free speech but a misunderstanding of the Establishment Clause and continued reliance on the Lemon test.

Over the last four decades, the Supreme Court has repeatedly protected religious speech and emphasized the importance of history in Establishment Clause analysis. Despite these developments, lower courts and government officials at many levels seem to have a shag-carpet understanding of the Establishment Clause: one that is stuck in the 1970s and has not been updated since. Under this view, allowing religious speech on public property or in government-funded programs is constitutionally dangerous, and the safest course for local officials is to exclude it.

That mistaken view of precedent has consequences. Officials have used it to censor religious expression from public transit, exclude religious participants from generally available funding programs, and even deny relief funds to houses of worship devastated by hurricanes.

Boston made a similar error here, and the Court unanimously corrected it. But until the Court expressly overrules Lemon, government officials will continue to follow it, to the detriment of both free speech and free exercise.

I.

The City of Boston allows private groups to hold events on city property—including flag-raising events at one of the three flagpoles in front of City Hall.[2] The application for these events noted that Boston seeks “to accommodate all applicants seeking to take advantage of the City of Boston’s public forums.”[3]

In twelve years prior to the Shurtleff dispute, Boston received 284 requests from private groups wanting to raise a flag of their choice for an hour or two on the flagpole.[4] The city approved every single one—flags of foreign nations to celebrate Boston’s ethnic diversity, pride flags flown by Boston Pride, and even a flag advertising a local credit union.[5] But something changed with the 285th request when a group called Camp Constitution applied to hoist their “Christian Flag”—white with a red cross on a blue field.[6] Boston denied Camp Constitution’s application because the flag was “religious.”[7]

Camp Constitution and its director, Harold Shurtleff, sued the city, alleging that Boston’s rejection of their Christian flag violated the Free Speech Clause of the First Amendment. Camp Constitution lost in the district court and First Circuit, but the Supreme Court unanimously reversed. Across three opinions, every justice agreed that “the city’s refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment.”[8]

The majority opinion focuses on whether Boston’s decision to allow private groups to hoist flags of their choice on the city’s flagpole represented Boston’s own “government speech,” or instead created a forum for the expression of private speech protected by the Free Speech Clause. Given “the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages,” the Court had no difficulty concluding that the flag raisings were “private, not government, speech.”[9]

Perhaps because this was an easy speech case, the majority broke little doctrinal ground on that point. Shurtleff simply adds another data point to a spectrum for lower courts to apply in future cases: If the speech at issue is more like Boston’s flag-raising program in Shurtleff or the trademark registration in Matal,[10] then it’s private. If it’s more like the city park monument in Summum[11] or the license-plate designs in Walker,[12] then it’s government speech.

II.

Given how easily a unanimous Court concluded that Boston’s flag-raising program was subject to the Free Speech Clause, how did Boston get it so wrong? The answer lies elsewhere in the First Amendment—the Establishment Clause.

After receiving Camp Constitution’s flag-raising application and consulting with city lawyers, a city official explained to Camp Constitution that the exclusion of all “non-secular flags” was “consistent with well-established First Amendment jurisprudence prohibiting a local government from ‘respecting an establishment of religion.’”[13] Doubling down, Boston later admitted that excluding religious flags serves “no goal or purpose . . . except ‘concern for the so-called separation of church and state or the [C]onstitution’s [E]stablishment [C]lause.’”[14] The First Circuit compounded the error when, citing Lemon, it concluded that “the City’s establishment concerns are legitimate.”[15]

This led six justices to join opinions expressly recognizing that Boston’s core error stemmed from misinterpreting the Establishment Clause. Justice Kavanaugh put it most bluntly: “This dispute arose only because of a government official’s mistaken understanding of the Establishment Clause.”[16] Justice Alito, joined by Justices Gorsuch and Thomas, agreed.[17] At oral argument, Justices Kagan and Sotomayor likewise stated that Boston made an Establishment Clause “mistake.”[18]

Justice Gorsuch, joined by Justice Thomas, wrote separately to identify the source of Boston’s Establishment Clause mistake—the infamous Lemon test.  Lemon “bypassed any inquiry into the Clause’s original meaning” and “ignored longstanding precedents.”[19] The tripartite test prohibits any government action that (1) lacks a secular purpose, (2) has the primary effect of advancing or inhibiting religion, or (3) excessively entangles the government in religion.[20] A gloss on the second prong later asked whether a “reasonable observer” (whomever that is) would view the government’s action as an “endorsement” (whatever that means) of religion.[21]

The failings of the Lemon/endorsement test are as familiar as they are extensive. In short, “[t]he test has been harshly criticized by Members of [the Supreme] Court, lamented by lower court judges, and questioned by a diverse roster of scholars.”[22] Not surprisingly, then, the Court’s more recent cases like Town of Greece and American Legion have returned to history as the key to understanding what constitutes an establishment of religion.[23] And the Court hasn’t applied Lemon in nearly 20 years.[24]

Shurtleff follows the Court’s same trend of abandoning Lemon. As Justice Gorsuch points out, “[n]ot a single Member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.”[25]

Justice Breyer’s six-justice majority doesn’t give the Establishment Clause the time of day once it concludes the flags are private speech.[26] It’s a straightforward case of viewpoint discrimination to deny the Christian flag, with no mention of Boston’s fear of being “accused of having endorsed a religion.”[27] There’s no discussion of the endorsement test’s “reasonable observer” incorrectly attributing a religious message to the government, despite the fact that the majority’s earlier government speech analysis recognizes that a passerby seeing a cross-bearing flag flying in front of city hall might think that the city put it there.[28]

Contrast that with Good News Club, where three dissenting justices raised varying degrees of Establishment Clause concern with permitting religious speech in the limited public form at a public school.[29] Even starker is Rosenberger, where the four dissenting justices (including Justice Breyer, Shurtleff’s author) explicitly argued that the use of a public university’s student activity funds to support religious speech on equal terms with secular speech was, in fact, an establishment of religion.[30] By the time Shurtleff comes around, though, Justice Breyer cites Good News Club and Rosenberger as the crux of the Court’s analysis.

The three concurring opinions take an even stronger stand against Boston’s Establishment Clause error. As noted, Justices Gorsuch and Thomas place the blame on Lemon directly and caution government officials and lower courts to “let [Lemon] die.”[31] Justice Kavanaugh explains that the Court “has repeatedly made clear” that “a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like.”[32] And Justice Alito reminds that “‘[m]ore than once,’ this Court has ‘rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design.’”[33]

III.

Shurtleff corrects Boston’s error and sends a strong message that “a government may not treat religious persons, religious organizations, or religious speech as second-class.”[34] But the Court still needs to do more. Boston is not alone in its misunderstanding of the Establishment Clause. Without a formal overruling of both Lemon and its related endorsement test in their entirety, many government officials still apply this outdated reading of the Establishment Clause. As a result, these officials exclude religious individuals and groups from equal access to public forums and public funding.

A few examples illustrate the breadth of the problem:

  1. Public transit advertising. Public transit systems often sell advertising space on trains and buses. Unfortunately, some transit systems impose discriminatory bans on religious messages in the name of separating church and state.[35] Justices Gorsuch and Thomas recently noted that the Court’s “intervention” to fix the law in this area is “warranted” because “[t]he First Amendment requires governments to protect religious viewpoints, not single them out for silencing.”[36] They flagged this issue again in Shurtleff.[37]
  2. Public facilities. New York City allows private groups to hold events in public schools after school hours. But citing Establishment Clause concerns as its “sole reason,” the city barred religious groups from using the space for worship.[38] Even in the face of Good News Club, the Second Circuit concluded that the “exclusion was constitutionally permissible in light of the Board’s reasonable and good faith belief that permitting religious worship services in its schools might give rise to an appearance of endorsement in violation of the Establishment Clause, thus exposing the Board to a substantial risk of liability.”[39]
  3. Disaster relief grants. From at least 1998 until 2018, the Federal Emergency Management Agency barred houses of worship from receiving disaster recovery grants available to other nonprofit community organizations. FEMA has long recognized that faith groups play a critical role in disaster recovery.[40] But FEMA still denied disaster recovery funds to a synagogue in Florida damaged by Tropical Storm Faye because its community programs were “based on or teach Torah values and Jewish tradition, customs and laws.”[41] After Hurricane Katrina, a historic Black church in New Orleans that provided “literacy programs, clothing distribution, food and nutrition programs,” “health and wellness programs,” and a “homeless shelter” fared no better.[42]

FEMA finally abandoned its discriminatory policy in 2018 after several houses of worship sued—but not until the churches petitioned the Supreme Court for emergency relief and Justice Alito called for FEMA to respond.[43] Congress then passed a law to keep FEMA from returning to its discriminatory policy.[44]

  1. Historic preservation grants. In an effort to preserve local history, some states and local governments provide grants to pay for the restoration and preservation of historically significant buildings. In return, the building owners typically must give the government an easement committing to maintain the buildings’ historic appearance. But, citing antiestablishment interests, the high courts in New Jersey and Massachusetts barred houses of worship from receiving grants, regardless of their historic significance.[45]

Members of the Supreme Court and state courts alike have recognized the confusion in the law and the need for the High Court’s clarification. As Justices Kavanaugh, Alito, and Gorsuch stated, the Supreme Court “need[s] to decide whether governments that distribute historic preservation funds may deny funds to religious organizations simply because the organizations are religious.”[46]

Although these particular errors stem from state Blaine Amendments rather than the federal Establishment Clause, confusion at the federal level compounds confusion at the state level. For example, the New Jersey Supreme Court cited Lemon alongside other cases to conclude that “the grant program poses questions under any articulation of the current standard.”[47] Such cases raise similar concerns over the exclusion of religious exercise and speech.

  1. School funding. In Hunt v. McNair—again from the 1970s—the Supreme Court interpreted Lemon’s “effect” prong to bar state funds from flowing “to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.”[48] For decades, so-called “pervasively sectarian” institutions were excluded from “direct state aid of any kind.”[49] Despite the Court’s later rejection of this discriminatory rule in favor of religious neutrality,[50] the “pervasively sectarian” exclusion remains, well, pervasive.

Thus, for example, when Colorado chose to fund scholarships for students at private colleges in the state, it barred them from being used at any school deemed “pervasively sectarian” in “an attempt to conform to First Amendment doctrine.”[51] This restriction remained in effect until the Tenth Circuit struck it down in 2008.[52]

Those cases were years ago, so it might seem that the problem has been resolved. To the contrary, this standard persists in government programs. For example, in Carson v. Makin,[53] the Supreme Court is currently confronting Maine’s law that restricts private-school tuition vouchers to “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”[54]

Nor is the problem limited to state and local governments. For example, Congress created a loan program to assist historically Black colleges and universities with capital improvement projects. Congress recognized that HBCUs “have played a prominent role in American history and have an unparalleled record of fostering the development of African American youth.”[55] But, borrowing text straight from Hunt, Congress excluded any “institution in which a substantial portion of its functions is subsumed in a religious mission.”[56] The Office of Legal Counsel recently concluded that this restriction “unconstitutionally discriminates on the basis of an institution’s religious character.”[57]

Despite the OLC opinion, Congress continues to draft legislation using the Hunt standard. The “Build Back Better Act” debated last year would have provided grants for child-care providers to renovate or improve their facilities “to improve child care safety.”[58] Ignoring decades of developments in Religion Clauses jurisprudence, the bill clung to the bad old days and barred any child-safety grants from going to child-care facilities whose “functions . . . are subsumed in a religious mission.”[59]

Another reason that municipal officials often rely on Lemon and its progeny are the threat letters they receive when they attempt to accommodate religious expression. These letters provide a skewed view of the Establishment Clause; they often do not even mention the Supreme Court’s decisions in Town of Greece and American Legion, acting as if nothing has changed. Two examples from last year illustrate the trend.

First, Freedom From Religion Foundation wrote to the Pewamo-Westphalia School District in Michigan asking the District to take down a display including a cross.[60] The letter does not mention Town of Greece, American Legion, or more recent Sixth Circuit cases, but does rely on Lemon and pre-Town of Greece Sixth Circuit precedent. The school took down the displays in response.

Similarly, a public transit authority has ended a longstanding tradition of allowing a private group to display a Christmas creche at a train station in Queens, after Americans United for Separation of Church and State sent a threat letter to the Long Island Railroad for permitting the private display. That letter, written in 2021, makes no mention of American Legion or Town of Greece, nor any of the Supreme Court’s cases since 2001.[61]

The point of these examples is not to treat them as proper explanations of the Supreme Court’s Establishment Clause jurisprudence—they decidedly are not—but instead to explain the popular version of Lemon/endorsement jurisprudence, which differs substantially from the Supreme Court’s rulings over the past decade. As Justices Gorsuch and Thomas point out, the Supreme Court has “abandoned Lemon” in practice.[62] At least three courts of appeals have taken the cue and held that a historical analysis, not Lemon, now applies to public display cases.[63] But until the Court formally overrules Lemon, the threat letters citing Lemon and its progeny will continue to be sent, and local officials who don’t know any better will continue to prohibit and tear down displays that have every right to remain.

IV.

So once Lemon is gone for good, what should replace it? In the wake of Town of Greece and American Legion, the answer is clear—a standard rooted in the text, history, and traditions of the Establishment Clause.

This is not a new idea. The Court has “always purported to base its Establishment Clause decisions on the original meaning of that provision.”[64] Lemon was the aberration—ignoring text, history, and longstanding precedent, the Court “gleaned” its test from just two cases decided in the previous three years.[65]

The Gorsuch/Thomas concurrence in Shurtleff gives a good idea of what a return to a historical analysis would look like. “Beyond a formal declaration that a religious denomination was in fact the established church, it seems that founding-era religious establishments often bore certain other telling traits.”[66] The government (1) “exerted control over the doctrine and personnel of the established church”; (2) “mandated attendance in the established church”; (3) “punished dissenting churches and individuals for their religious exercise”; (4) “restricted political participation by dissenters”; (5) “provided financial support for the established church, often in a way that preferred the established denomination over other churches”; and (6) “used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function.”[67] Focusing on these historic hallmarks of a religious establishment helps “explain many of [the] Court’s Establishment Clause cases” and “provide[s] helpful guidance” for lower courts and government officials alike.[68]

Applying that approach also makes Shurtleff an easy case. “[N]o one at the time of the founding is recorded as arguing that the use of religious symbols in public contexts was a form of religious establishment.”[69] Boston’s “sole reason” for discriminating against religious speech disappears, and the dispute probably never arises in the first place. The Establishment Clause doesn’t ask the government to “scrub[] away any reference to the divine”—it calls for “respect and tolerance.”[70]

***

Shurtleff itself won’t be the case to hammer the final nail in Lemon’s coffin. But a unanimous Supreme Court holding that Boston violated the First Amendment by discriminating against religious speech at least takes another swing at it.

[1]     Daniel Benson is counsel at the Becket Fund for Religious Liberty. Becket filed an amicus brief in the case discussed in this article. But the views expressed here do not necessarily reflect the views of Becket or its clients. The author thanks his colleagues Lori Windham, Eric Rassbach, and James Kim for their contributions. Any errors remain his own.

[2]  Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).

[3]  Id. at 1588.

[4]  Id.

[5]  Id.

[6]  Id.

[7]  Id.

[8]  Id. at 1593; accord id. at 1595 (Kavanaugh, J., concurring) (“Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”); id. at 1601 (Alito, J., joined by Thomas and Gorsuch, JJ., concurring in the judgment) (“As the Court rightly holds, denying Shurtleff’s application to use that forum constituted impermissible viewpoint discrimination.”).

[9]     Id. at 1593; accord id. at 1601 (Alito, J., concurring in the judgement) (“[T]he flag displays were plainly private speech within a forum created by the City, not government speech.”).

[10]   Matal v. Tam, 137 S. Ct. 1744 (2017).

[11]   Pleasant Grove City v. Summum, 555 U.S. 460 (2009).

[12]   Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015).

[13]  Brief for the Petitioners at 14, Shurtleff, 142 S. Ct. 1583 (No. 20-1800), 2021 WL 5404792.

[14]  Id. at 16.

[15]  Shurtleff v. City of Boston, 986 F.3d 78, 96 (1st Cir. 2021) (citing Lemon v. Kurtzman, 403 U.S. 602, 615 (1971)).

[16]  Shurtleff, 142 S. Ct. at 1594 (Kavanaugh, J., concurring).

[17]  Id. at 1602 (Alito, J., concurring in the judgement) (“The City’s decision was grounded in a belief that ‘[e]stablished First Amendment jurisprudence’ prohibits a government from allowing a private party to ‘fly a [r]eligious flag on public property.’”).

[18]   Transcript of Oral Argument at 70-71, Shurtleff, 142 S. Ct. 1583 (No. 20-1800) (Kagan, J.) (“[T]his really does go back to Justice Kavanaugh’s point . . . that this all came about because of a mistake by Mr. Rooney . . . . You know, we have a line in one our opinions that says a City Hall . . . can’t have a cross . . .  on the roof. And so . . . Mr. Rooney looks at this and says isn’t this the same thing and prohibits it . . . . And so this was a mistake.”); id. at 81-82 (Sotomayor, J.) (“His only problem was, as Justice Gorsuch pointed out, was this mistaken belief that the Constitution required that the city not raise a flag that had a cross by a religious group.”).

[19]  Shurtleff, 142 S. Ct. at 1604 (Gorsuch, J., joined by Thomas, J.,

concurring in the judgment).

[20]  Lemon, 403 U.S. at 612.

[21]  County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 631 (1989) (O’Connor, J., joined by Brennan and Stevens, JJ., concurring in part and concurring in the judgment).

[22]  Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2081 (2019) (plurality) (footnotes omitted).

[23]   Town of Greece v. Galloway, 572 U.S. 565, 576 (2014) (“[T]he Establishment Clause must be interpreted by reference to historical practices and understandings.” (cleaned up)); Am. Legion, 139 S. Ct. at 2089 (Practices comply with the Establishment Clause if they “follow in that tradition” of “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.”); accord id. at 2102 (Gorsuch, J., concurring in the judgement) (agreeing with plurality’s focus on “the nation’s traditions”).

[24]  Shurtleff, 142 S. Ct. at 1607 (Gorsuch, J., concurring in the judgement).

[25]  Id. at 1603 (Gorsuch, J., concurring in the judgement).

[26]  Id. at 1593.

[27]  Transcript of Oral Argument at 64, Shurtleff, 142 S. Ct. 1583 (No. 20-1800).

[28]  Shurtleff, 142 S. Ct. at 1593.

[29]   Good News Club v. Milford Cent. Sch., 533 U.S. 98, 131-32 (2001) (Stevens, J., dissenting) (“School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the . . . risk” of “introduc[ing] divisiveness and tend[ing] to separate young children into cliques that undermine the school’s educational mission.”); id. at 144-45 (Souter, J., joined by Ginsburg, J., dissenting) (“[T]here is a good case that Good News’s exercises blur the line between public classroom instruction and private religious indoctrination. . . .”).

[30]   Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 863 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).

[31]  Shurtleff, 142 S. Ct. at 1610 (Gorsuch, J., concurring in the judgement).

[32]  Id. at 1594 (Kavanaugh, J., concurring) (citing Zelman v. Simmons-Harris, 536 U.S. 639 (2002)).

[33]  Id. at 1602 (Alito, J., concurring in the judgement) (quoting Rosenberger, 515 U.S. at 839).

[34]  Id. at 1595 (Kavanaugh, J., concurring).

[35]   See Archdiocese of Wash. v. WMATA, 140 S. Ct. 1198 (2020), denying cert. to Archdiocese of Wash. v. WMATA, 897 F.3d 314 (D.C. Cir. 2018); Northeastern Pa. Freethought Soc’y v. Lackawanna Transit Sys., 938 F.3d 424, 442 (3d Cir. 2019) (striking down “ban on speech related to religion” in public transit advertising); Defendant’s Amended Motion for Summary Judgment at 20, Young Isr. of Tampa, Inc. v. Hillsborough Area Reg’l Transit Auth., 2022 WL 227563 (M.D. Fla. Oct. 8, 2021) (No. 8:21-cv-294), ECF 63 (public transit authority defending ban on religious advertisements to “maintain[] neutrality” on “religious issues”).

[36]   Archdiocese of Wash., 140 S. Ct. at 1199-1200 (Gorsuch, J., joined by Thomas, J., respecting the denial of certiorari).

[37]   Shurtleff, 142 S. Ct. at 1605 n.4 (Gorsuch, J., concurring in the judgement).

[38]  Bronx Household of Faith v. Board of Educ., 750 F.3d 184, 192 (2d Cir. 2014).

[39]   Id. at 189.

[40]   See, e.g., Fed. Emergency Mgmt. Agency, Baptists Aim to Rebuild 1,000 homes for North Carolina Survivors of Hurricane Matthew, Release No. DR-4285-NR-126 (Apr. 26, 2017) [https://perma.cc/4SK9-QBW8].

[41]   Fed. Emergency Mgmt. Agency, Appeal Letter on Second Appeal—Chabad of the Space Coast, Inc., PA ID 009-UWWJ8-00, Request for Public Assistance, FEMA-1785-DR-FL (July 27, 2012) [https://perma.cc/2XNV-ZGGM].

[42]   Fed. Emergency Mgmt. Agency, Appeal Letter on Second Appeal—Mount Nebo Bible Baptist Church, PA ID 071-UD1T3-00, Facility Eligibility, FEMA-1603-DR-LA, Project Worksheet 20447 (Mar. 13, 2014) [https://perma.cc/G4HM-Q9KR].

[43]   Compare Harvest Family Church v. FEMA, No. 17A649 (U.S. Dec. 21, 2017) (Alito, J.) (calling for FEMA’s response by Jan. 10, 2018), with Revisions to the Public Assistance Program and Policy Guide, 83 Fed. Reg. 472, 473 (Jan. 4, 2018) (changing FEMA policy so “houses of worship will not be singled out for disfavored treatment”).

[44]  Bipartisan Budget Act of 2018, Pub. L. 115-123, § 20604 (Feb. 9, 2018) (amending 42 U.S.C. § 5122(11)(B)).

[45]   See Freedom From Religion Found., Inc. v. Morris Cnty. Bd. of Chosen Freeholders, 181 A.3d 992 (N.J. 2018), cert. denied, 139 S. Ct. 909 (2019); Caplan v. Town of Acton, 92 N.E.3d 691 (Mass. 2018).

[46]   Morris Cnty., 139 S. Ct. at 911 (Kavanaugh, J., joined by Alito and Gorsuch, JJ., respecting the denial of certiorari); see also Caplan, 92 N.E.3d at 712 (Kafker, J., concurring) (“Today’s decision takes us into one of the most confusing and contested areas of State and Federal constitutional law.”).

[47]   Morris Cnty., 181 A.3d at 1012.

[48]   413 U.S. 734, 743 (1973).

[49]   Roemer v. Bd. of Pub. Works, 426 U.S. 736, 758 (1976).

[50]   See, e.g., Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793 (2000); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017); Espinoza v. Montana Dep’t of Rev., 140 S. Ct. 2246 (2020).

[51]   Ams. United for Separation of Church & State v. Colorado, 648 P.2d 1072, 1075 (Colo. 1982).

[52]   See Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008).

[53]  141 S. Ct. 2883, granting cert. to Carson v. Makin, 979 F.3d 21 (1st Cir. 2020).

[54]   Me. Rev. Stat. Ann. tit. 20-A, § 2951(2).1.

[55]   20 U.S.C. § 1066(2).

[56]   20 U.S.C. § 1066c(c). The same restriction also appears in a separate grant program for institutions of higher learning. See 20 U.S.C. § 10004(c)(3).

[57]   Religious Restrictions on Capital Financing for Historically Black Colleges & Universities, 43 Op. O.L.C. —, slip op. at 16 (Aug. 15, 2019).

[58]   H.R. 5376 § 132002, at 1389 ln. 21-22 (capitalization removed).

[59]   Id. at 1399 ln. 22 to 1400 ln. 3.

[60]   See Letter from Christopher Line, Staff Attorney, Freedom From Religion Foundation, to Jeff Wright, Superintendent, Pewamo-Westphalia Community Schools (Sept. 9, 2021) [https://perma.cc/HXA2-8BYT].

[61]   Letter from Richard B. Katskee and Ian Smith, Americans United for Separation of Church and State, to Phillip Eng, President, The Long Island Railroad (Mar. 9, 2021) [https://perma.cc/H2UU-3J3J].

[62]   Shurtleff, 142 S. Ct. at 1604 (Gorsuch, J., concurring in the judgement).

[63]   See Freedom From Religion Found., Inc. v. County of Lehigh, 933 F.3d 275, 279 (3d Cir. 2019); Woodring v. Jackson County, 986 F.3d 979, 997 (7th Cir. 2021); Kondrat’yev v. City of Pensacola, 949 F.3d 1319, 1321 (11th Cir. 2020).

[64]  Town of Greece, 572 U.S. at 602 (Alito, J., concurring).

[65]  403 U.S. at 612 (citing Bd. of Educ. v. Allen, 392 U.S. 236, 243 (1968); Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970)).

[66]  Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgement).

[67]   Id. (citing Michael McConnell, Establishment & Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110-12, 2131 (2003)).

[68]  Shurtleff, 142 S. Ct. at 1609-10 (Gorsuch, J., concurring in the judgement).

[69]   Id. at 1610 (Gorsuch, J., concurring in the judgement) (quoting Michael McConnell, No More (Old) Symbol Cases, 2019 Cato Sup. Ct. Rev. 91, 107 (2010)).

[70]  Id. (quoting Am. Legion, 139 S. Ct. at 2084-85, 2089).

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