So it seems that in Philadelphia, you can park in a no-parking zone if you’re attending services at select downtown churches and put a placard stating as much in your car’s windshield. Comments at a popular atheist website suggest that other cities simply turn their parking meters off on Sundays, or otherwise overlook flagrant-seeming parking violations near churches on Sundays, but there is an indication that in Philadelphia, at least one secular group gets a similar privilege.
The questions on the table are: 1) does giving special parking passes for worship constitute an impermissible Establishment of religion, or an appropriate accomodation of it? and 2) if it is an Establishment, does the extension of a similar privilege for secular groups redeem it?
Our jurisprudence has given us three ways to test for Establishment: the coercion test, the Lemon test, and the endorsement test. There is also the literalist reading of the Establishment clause, which is that it prohibits only the designation of a particular religion as the official religion of the Federal Government (and note that adherents to this point of view flirt with, and sometimes endorse, the idea that only Congress and netiehr the States nor the President is similarly prohibited from Establishing an official religion).
The coercion test was formulated by Justice Anthony Kennedy in the case of Lee v. Weisman (1992) 505 U.S. 577, a case concerning a public high school’s retention of a cleric to give a (relatively banal) benediction at a graduation ceremony:
As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Our decisions in [Engel] and [Abington] recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.
Lee, supra, at 592 (Kennedy, J., concurring, internal citations removed). The distinction between the “indirect coercion” to which Kennedy objects and the “endorsement” that Justice O’Connor fears in the next test is a subtle one. But again, the question on the table is, does giving free parking to church parishiners produce the same kind of pressure to conform that a benediction at a graduation ceremony does? I just don’t see it. Free parking on Sunday morning may be an incentive, but if you aren’t inclined to worship, you clearly have the option of staying home instead of going to Rittenhouse Square and searching for somewhere to put your car.
Since under the coercion test we don’t have an Establishment Clause problem in the first place, we don’t need to address the question of whether giving similar passes to secular groups redeems the practice — at least not from a Constitutional perspective. It might seem unfair, though, if only religious people got this privilege and non-religious people did not. (Turning the parkings meters off on Sundays, by the way, might seem unfair — everyone can park free on Sunday — but it should strike you as no coincidence that the meters are turned off on Sundays and not Saturdays.)
The endorsement test, which I personally favor,* derives from a concurring opinion by Justice Sandra Day O’Connor in the case of Lynch v. Donnelley (1984) 465 U.S. 668, a challenge to a display of a nativity scene on public property:
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. [¶] The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.
What Justice O’Connor was trying to do here was to reduce a more complicated Establishment Clause test to a relatively simple, content-specific concept. Where Kennedy focused on effect, O’Connor would focus on intent. The test is weak in that it can be infuriatingly difficult to ascertain intent from governmental activities, but that does not mean it is difficult. And in my mind, this way of looking at the Establishment Clause adheres the closest to a vision of society in which people may freely and without official response worship (or not) as they choose. I also happen to think that the endorsement test is good law, as six Justices of the Supreme Court have applied it in the case of Santa Fe Independent School District v. Doe (2000) 530 U.S. 290, a case about student speeches being used for “voluntary” prayers before high school football games.
Parking passes for churches looks like an endorsement to me. The city gives a message that it likes it when people worship in these churches so much that it will let them park in the red zones, which normally are for the immediate loading and unloading of passengers only, and the bike lanes, which seems to be a source of particular frustration for those who object to Philadelphia’s practice. This is particlarly so if the placards really look like the graphic at the top of the page — with the logo of the church in question.
So, does offering similar privileges to members of a secularist group redeem it? The city has no more business endorsing a secular group than it does endorsing a church. (Maybe no less, if you don’t like the endorsement test, but in either case, they are obvious equivalents.) So I wouldn’t redeem the practice because it’s made available to secular groups too. I might redeem it if it were offered to all sorts of groups and people — if you’re going to offer it to the churches, and to the secular groups, you need to offer it to the birdwatchers and the downtown historical society and the Red Hat Ladies and anyone else who asks for it.
In her exposition of the endorsement test, Justice O’Connor referred to something called the Lemon test, which is the classic three-prong analysis from the case of Lemon v. Kurtzman (1971) 403 U.S. 602, which addressed a program subsidizing secular textbooks for students attending parochial schools. In that case, the Court adopted a three-step analysis of a particular practice, program, or law to determine if it is or is not an Establishment of religion, requiring the governmental activity to correctly answer all three questions:
- Does government’s action have a secular legislative purpose? If so, it passes this test.
- Does government’s action have the primary effect of either advancing or inhibiting religion? If so, it fails this test.
- Does government’s action result in an “excessive government entanglement” with religion. If so, it fails this test.
The first two prongs are relatively easy to understand, although again “purpose” sounds like “intent,” and we’re back an inherently squishy sort of analysis. The third prong is usually where all the questions come in — what is an “excessive government entanglement”? After a lot of thinking about it, it seems to me that it’s like the pornography test — “I know it when I see it.” In Lemon itself, some government official had to examine the textbooks in question and analyze the classes in which they were used, to determine if they were eligible for the state subsidies. That was an excessive entanglement.
Parking passes may well not be so entangling, but we never get to that step of Lemon in this case. I don’t think any reasonable person could say that the purpose of the policy is anything other than making it easier for people to go to church. This produces both an intent and an effect of advancing religion. The parking passes fail the Lemon test.
But what if the passes are available to secular groups, too? That obliges us to make a more searching inquiry into both the reason the program was created in the first place as well as who actually uses it. If it turns out that the authors of the policy or practice wanted to encourage people to go to these downtown churches, then the practice fails the first prong. (This seems likely to me, but I have no evidence one way or the other.) If it turns out that the overwhelming number of passes that are actually issued or used go to the benefit of the churches (again, this seems a reasonable suspicion to me but I’ve no evidence to point to), we have an effect prong problem, and a Lemon violation despite the availability of the passes to secular groups.
Under a strict literalist interpretation, there is no problem because parking passes are not explicitly stating that “these are the official churches of Philadelphia,” and even if they did explicitly state that “these are the official churches of Philadelphia,” that’s okay becuase the city of Philadelphia is not Congress.
So those are the four available ways to look at the issue. I say, it’s an endorsement of the churches whose parishioners get the passes and I don’t much care that a secular group can also participate in the program and get passes for their people, too. Unless the secular group is drawing hundreds if not thousands of people to its meetings and has an established meeting-house of its own, it’s just not equivalent. The City is not just accomodating people who want to go to church, it is giving them special privileges to get people into those buildings and before those pulpits. That crosses a line, and my call is “Establishment.”
* See? That’s an endorsement!