Entangled by Establishment Clause Tests - American Humanist Association, et al. v. Maryland-National Capital Park and Planning Commission

Flanked by an American Flag, and surrounded by blighted commercial buildings and utility poles which slowly littered around Blandensburg Road, Baltimore Avenue, and Annopolis Road over the course of nearly a century, amidst a cacophony of street traffic, honking horns, and consumer and tourist chatter, stands the forty feet tall Peace Cross that commemorates Blandensburg’s World War I casualties. Any passerby seeking peace, repose, or even meaning amidst a cluttered and distracted backdrop may briefly escape the embattled noise of the streets and distracted urban-consumerism to reflect on civic virtues—Valor, Courage, Endurance, and Devotion—that motivated a past-generation to fight in the first, world-wide industrialized war.

Though the Peace Cross is listed on the National Register of Historic Places, which identifies sites and objects worth preservation, this beacon which stood so long to commemorate the sacrifice of past generations, and which stands still for civic virtues necessary to sustain any free society, faces removal by the arbitrary dictates of a handful of judges. In American Humanist Association, et al. v. Maryland-National Capital Park and Planning Commission, Cause No. 15-2597 (the “Peace Cross Case”), United States Court of Appeals for the Fourth Circuit held that “the purported war memorial breaches the ‘wall of separation between Church and State’” and must, as a result, be removed.

Partly at issue in the Peace Cross Case was the question whether the test articulated by the United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), controlled the Establishment Clause analysis or whether Van Orden v. Perry, 545 U.S. 677 (2005) controlled. The Lemon Court articulated a three-prong test to withstand an Establishment Clause attack: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” A plurality in Van Orden called into question the continuing validity of the Lemon test, opting into an Establishment Clause analysis which is “driven both by the nature of the monument and by our Nation’s history,” a history, as the Van Orden Court recognized, informed by a religious heritage.

The court in the Peace Cross case determined that the Lemon test applied “with due consideration given to the factors in Van Orden, mindful that a violation of even one prong of Lemon results in a violation of the Establishment Clause.” The court easily determined that the Peace Cross served a secular purpose—maintenance of safety near a busy intersection and to honor World War I soldiers. But the court found that the Peace Cross advanced or endorsed Christianity because the Latin cross is the preeminent symbol of Christianity and, despite the Peace Cross being adorned with some secular symbols, these symbols paled in conspicuousness to the Peace Cross itself, which stood four stories tall. The court also found that government display of the Peace Cross created an excessive entanglement between government and religion because the Commission owned and maintained the Peace Cross and had spent nearly $117,000 to maintain the Peace Cross and set additional funds aside to restore the Peace Cross.

 The Supreme Court in Van Orden aptly captured the problem with the Lemon test:

Our institutions presuppose a Supreme Being, yet these institutions must not press religious observance upon their citizens. One face looks to the past in acknowledgment of our Nation’s heritage, while the other looks to the present in demanding a separation between church and state. Reconciling these two faces requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage.  

Van Orden, 545 U.S. at 683-84. The plurality in Van Orden recognized, as have many legal scholars, the conceptual problems that inhere in the Lemon test. One of the most important problems is the “entanglement” element. The Lemon test itself requires a certain amount of government entanglement with religion simply by engaging in the analysis.

The Peace Cross case provides a prime example of the entanglement problem. The Fourth Circuit delved seriously into the importance and religious salience of the Latin Cross to Christianity generally. The Fourth Circuit also injected itself into a religious controversy raised by the Appellant, American Humanist Association (“AHA”). The AHA’s mission is “to bring about a progressive society where being good without a god is an accepted and respected way to live a life.” The group states its mission as “[a]dvocating progressive values and equality for humanists, atheists, and freethinkers.” What most courts, including the Fourth Circuit here, gloss over is the fact that these suits by activist atheists or non-theists organizations are really theistic debates, which center not only on the place of any god in civil society, but on the necessary abandonment of the concept of God to advance civil society. These suits entangle government, primarily the court system, in religious controversy.

            As this Country continues to debate the place past statutes and monuments should presently share in public spaces, attending to a shared past colored by liberty and oppression, hatred and love, segregation and equality, no person should lose sight of the fact that we are still pressing forward in this grand experiment. Justice Kennedy famously wrote, “[a]t the heart of liberty is the right to define one’s existence, of meaning, of the universe, and of the mystery of human life.” See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992). We naturally need and seek out others with whom to make meaning and to share that meaning. This intellectual sharing has been the springboard of progress. Disagree as we may on the existence of God, the meaning of life, or the possibility or scope of morality, we retard progress by erasing our shared past based on trivial disagreements.

            The Establishment Clause has a central place in our national history as well. The Framers knew all too well the dangers which arise when government and religion become deeply entangled. We are mindful today of those dangers. Remaining vigilant to avoid dangerous entanglement is a civic duty. But it is impossible to absolutely separate religious sentiment and belief from government, not only because this Nation’s history is based heavily on religious traditions, but also because human beings are the one’s governing and some of those human beings’ whole lives have meaning attributable to a God and that meaning is inseparable from who they are.

Whatever the virtue of the Separation of Church and State as a principle, it is an empty promise if we are separated by efforts to promote it. We gain as much meaning by separation as we do unity, and we lose as much meaning by separation as we do understanding. 

Lack of Ripeness Does Not Mean "No Basis In Fact or Law": Limiting Texas Rule of Civil Procedure 91a

Is a Motion to Dismiss pursuant to Texas Rule of Civil Procedure 91a the proper vehicle through which to challenge a court’s subject matter jurisdiction based on lack of ripeness? Normally, a Plea to the Jurisdiction is the appropriate procedure to challenge a court’s subject matter jurisdiction. See Hosner v. Young, 1 Tex. 765, 769 (Tex. 1846); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-226 (Tex. 2004). Yet, lack of ripeness has served as a ground for dismissal under Rule 91a in Texas courts. See In re Essex Ins. Co., 450 S.W.3d 524, 525-28 (Tex. 2014); Auzenne v. Great Lakes Reinsurance, PLC, 497 S.W.3d 35, 38 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (lack of ripeness).

Subject matter jurisdiction speaks to a court’s power to adjudicate a matter. Courts can raise subject matter jurisdiction concerns sua sponte, and are, in fact, instructed to do so. See Miranda, 133 S.W.3d at 225-26 (“The trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed.”). If a trial court determines that it lacks subject matter jurisdiction, it must dismiss the matter.

         Whereas subject matter jurisdiction speaks specifically to a court’s power to adjudicate a matter, Rule 91a speaks to whether a litigant alleged a claim with a basis in fact or law, that is, the Rule speaks to a claim’s plausibility. See e.g., Tex. R. Civ. P. 91a.1; City of Dallas v. Sanchez, 492 S.W.3d 722, 724 (Tex. 2016); Daniel R. Correa, A Reasonable Person Believes What Is Plausible: City of Dallas v. Sanchez and Rule 91a’s Factual Plausibility Standard, 49 Tex. Tech. L. Rev. 721 (2017). “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” Id.

        Ripeness does not appear to fall neatly into either a no basis in law or fact category.  The ripeness doctrine aims to avoid premature litigation. “A case is not ripe when its resolution depends upon events that have not yet come to pass.” See Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011). When lack of ripeness is the issue, the problem is not whether a reasonable person could believe the facts pleaded, but with whether the facts pleaded and believed by a reasonable person state a non-speculative injury. Likewise, the problem raised by ripeness concerns is not whether the allegations entitle the claimant to the relief sought without qualification, but with whether the allegations plausibly entitle the claimant to the relief sought at this time. Rule 91a was meant to address matters that could never come to fruition in fact or existing law.

            Consider also that the Federal Rules of Civil Procedure distinguish between a litigant’s failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1), (6). Federal Civil Procedure Rule 12(b)(6) directly compares to Texas Civil Procedure 91a. Under the federal rule, a motion to dismiss for failure to state a claim upon which relief may be granted attacks the merits of the claim; whereas, a motion to dismiss for lack of subject matter jurisdiction challenges the court’s power to hear the case. See Ramming v. United States, 281 F.3d 158, 161-62 (5th Cir. 2001). Under Rule 12(b)(6), “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

         Texas courts would do well to adhere to the federal model with respect to motions to dismiss. When a party wishes to move the court to dismiss a matter for failure to state a legally cognizable claim, Texas Civil Procedure Rule 91a is the appropriate vehicle. When a party wishes to move the court to dismiss a matter because the court lacks power to hear it, specifically, here, because the action is brought too soon, a Plea to the Jurisdiction is appropriate. Remember, subject matter jurisdiction concerns do not center on whether a litigant raised a legally cognizable claim, but on whether the litigant is the right party to bring the claim (standing), or whether the claim was brought too soon (ripeness), or whether the claim was brought to late (mootness), or whether the claim should be decided by another branch of government (political questions). Though this blog did not address standing, mootness, or political questions, the reasoning herein provides some guidance on how to think about the problem concerning Rule 91a as a vehicle to dismiss matters based on lack of subject matter jurisdiction.