Note

Can the Reasonable Person Be Religious? Accommodation and the Common Law

Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, many petitioners have argued, and many courts have accepted, that the existence of but one secular exemption eliminates the neutrality and general applicability of a law. As such, strict scrutiny is applied. For those who would prefer to return to the free exercise jurisprudence that predated Employment Division v. Smith, this result may seem welcome, even a victory. This Note, however, suggests that such an approach should raise concern.

This Note argues that this aggressive exemption free exercise theory requires the reasonable person standard of torts to accommodate parties’ religious beliefs. Many courts that have addressed the issue have found the same. This Note then surveys the three responses courts have taken to accommodate religious belief in tort law: the “objective” approach, “the reasonable believer” test, and the “case-by-case” method. Fundamental Free Exercise and Establishment Clause problems with the “objective” and “reasonable believer” approaches demonstrate the superiority of a “case-by-case” analysis. That any accommodation is required, however, should give pause.

It is not the specific contours of tort law that give rise to the required accommodation, but rather the heavily individualized decision-making process that tort law uses. Individualized decision-making is not a symptom, but rather a feature, of the common law. As such, finding a required religious accommodation to tort law has broad ramifications for our standards-based legal system. This Note argues that this outcome suggests a fundamental flaw with the Court’s aggressive exemption free exercise jurisprudence.

Introduction

Marbury v. Madison teaches us that the judicial branch has the power to review the constitutionality of governmental acts.1 1.5 U.S. (1 Cranch) 137, 177–78 (1803).Show More This power of review comes up most frequently when congressional or state legislative acts run afoul of the Constitution. But what happens when someone claims that the common law, a product of judges and purportedly applied uniformly to all citizens, burdens a constitutional right? Can people demand exemptions from a tort standard solely because of a claim of individualized burden? Consider the following scenarios:

In May 1991,2 2.Verdict Form, Williams v. Bright, 632 N.Y.S.2d 760 (N.Y. Sup. Ct. 1995) (No. 17261/92), 1994 WL 16200195.Show More Gwendolyn Robbins was traveling through upstate New York with her father when he swerved their vehicle off the road and into a culvert at sixty-five miles per hour. Mrs. Robbins, severely injured in the crash, was rushed to a local hospital for surgery. Once there, however, she learned that proper treatment would require blood transfusions. She refused on grounds that it would violate her religious beliefs as a Jehovah’s Witness. In the face of increased medical expenses and a reduced quality of life, Mrs. Robbins remained steadfast in refusing surgery. She later pressed for damages and the cost of continuing care in a negligence suit against the owner of the car.3 3.Facts consolidated from trial and appellate court decisions. Williams v. Bright, 632 N.Y.S.2d 760, 762–63 (N.Y. Sup. Ct. 1995), rev’d in part, 658 N.Y.S.2d 910, 911 (N.Y. App. Div. 1997).Show More

In August 1963, sixteen-year-old Ruth Eider was in a chairlift traveling down a mountain when the operator negligently stopped the lift. It was late afternoon and she and her nineteen-year-old male companion were stuck. After fifteen minutes of yelling, it became clear that no one was coming to help. Raised in an ultra-orthodox Jewish household, Ms. Eider had been taught that spending the night with a man in a place inaccessible to a third party was an overwhelming moral sin. Facing this prospect, Ms. Eider jumped from the lift. She eventually sued the State of New York (the operator of the mountain) for the cost of the injuries sustained in the jump.4 4.Friedman v. State, 282 N.Y.S.2d 858, 859–63 (N.Y. Ct. Cl. 1967), modified, 297 N.Y.S.2d 850 (N.Y. App. Div. 1969).Show More

In March 2006, Marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. Shortly thereafter, his father scheduled a funeral to commemorate his life for close friends and family. Members of the Westboro Baptist Church, a fundamentalist Christian sect, used this funeral as an opportunity to highlight their condemnation of homosexuality. They protested outside the ceremony carrying signs with slogans like “Thank God for dead soldiers,” “God hates you,” and “Semper fi fags” to spread their message. Mr. Snyder’s father sued the Church for intentional infliction of emotional distress (“IIED”). In response, the Westboro Baptist Church claimed complete immunity from tort liability on both free speech and free exercise of religion grounds.5 5.Snyder v. Phelps, 533 F. Supp. 2d 567, 569–70 (D. Md. 2008), rev’d, 580 F.3d 206 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011). The district court dismissed the free exercise claim, distinguishing statutory and criminal restrictions on religious practice from other types of restrictions. Id. at 579. This Note suggests that the case law and logic of free exercise jurisprudence do not support such a distinction.Show More

Although these three incidents, separated by over four decades, would seem to have little in common, the tort suits they spawned had to grapple with a question that has beguiled courts for years: In determining culpability, to what extent can tort law be modified to accommodate the strongly held religious beliefs of a party?6 6.The first court to address this question was the Supreme Court of Errors of Connecticut in Lange v. Hoyt,159 A. 575, 577–78 (Conn. 1932). Understanding the difficulty of the issues raised, “[n]ot surprisingly, the Connecticut trial court ducked the issue and the Connecticut Supreme Court (of Errors as it then was) affirmed the ducking” by allowing the jury to consider that the plaintiff’s religious beliefs were widely held in determining reasonableness. Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem 47 (1985). Modern courts have similarly struggled with this question. SeeMunn v. S. Health Plan, Inc., 719 F. Supp. 525, 526 (N.D. Miss. 1989) (“This wrongful death case [involving a decedent who refused a blood transfusion on religious grounds] presents some of the most difficult questions which this court has ever been asked to resolve.”); Rozewicz v. N.Y. City Health & Hosps. Corp., 656 N.Y.S.2d 593, 594 (N.Y. Sup. Ct. 1997) (“[T]he issues before me dealing with the deceased’s refusal to accept blood transfusions raise[] some of the most difficult legal issues I have been faced with during my years on the bench.”).Show More That is, when, if ever, can religion be a valid justification for ignoring the purportedly generally applicable standards of the common law?

At first glance, the answer to that question would seem to be never. The basic command of tort law is to “be reasonable.”7 7.“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.” Restatement (Second) of Torts § 283 (Am. L. Inst. 1965).Show More Reasonableness permeates the legal system in one form or another, a lodestar which guides court decision-making,8 8.See Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2135–46 (2015) (detailing the many permutations of reasonableness).Show More and is determined “objectively.”9 9.See Vaughan v. Menlove (1837) 132 Eng. Rep. 490 (C.P.) (discussing the importance of an objective standard of reasonableness and rejecting inquiry into subjective motivation).Show More This would appear to foreclose any consideration of parties’ subjective religious motivation. Over the years, however, a number of courts and commentators have realized that the answer is not that simple, particularly when “objective” reasonableness conflicts with the Religion Clauses of the First Amendment.10 10.Seesupra note 6; see, e.g., Jeremy Pomeroy, Note, Reason, Religion, and Avoidable Consequences: When Faith and the Duty To Mitigate Collide, 67 N.Y.U. L. Rev. 1111 (1992); Note, Medical Care, Freedom of Religion, and Mitigation of Damages, 87 Yale L.J. 1466 (1978) [hereinafter Medical Care].Show More In response, these courts and commentators have wrestled with a framework for accommodating religious belief in reasonableness calculations. Most of these approaches, however, arose well before the Supreme Court’s modern free exercise jurisprudence came into focus in Employment Division v. Smith.11 11.Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872 (1990).Show More Consequently, they do not deal with current developments in First Amendment law. Furthermore, they fail to grapple with the serious Establishment Clause concerns raised by exempting individuals from complying with a reasonableness standard.12 12.See Anne C. Loomis, Thou Shalt Take Thy Victim as Thou Findest Him: Religious Conviction as a Pre-Existing State Not Subject to the Avoidable Consequences Doctrine, 14 Geo. Mason L. Rev. 473, 505–09 (2007) (purporting to address Establishment Clause concerns but failing to consider the full gamut outlined infra in Part II).Show More In our common law system, which is built upon a similar edifice of individualized reasonableness determinations, these considerations could reverberate broadly. This Note will attempt to address these issues.

Part I will argue that the Supreme Court’s First Amendment jurisprudence after Smith not only allows, but requires, religious accommodation where application of the reasonable person standard burdens sincerely held religious belief. In reaching this conclusion, this Part will first show that the reasonable person standard lacks the neutrality and general applicability required under Smith and its Free Exercise Clause companion, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.13 13.508 U.S. 520 (1993).Show More This Part will then demonstrate that a lack of neutrality and general applicability can and will undermine any compelling interest the state could put forth in application. Thus, a religious adjustment is necessary.

Part II will discuss the three approaches that courts have taken to adjust the reasonable person standard for sincerely held religious belief. It will first address the “objective” test, which purports to reject consideration of subjective thought and prohibits courts from including religious belief in reasonableness determinations. The requirement of some accommodation under Smith and Lukumi makes this approach unworkable. This Part will then address the “reasonable believer” test, in which courts treat religion as an immutable characteristic of the party, similar to the “eggshell skull” rule in torts. It will reject this test on both Free Exercise and Establishment Clause grounds. Finally, this Part will discuss the “case-by-case” approach in which religion is one of many equally weighted factors used to determine the reasonableness of an action. It will contend that this approach alleviates some of the Free Exercise and Establishment Clause problems of the “reasonable believer” standard and is the best option given the demands of the Supreme Court’s First Amendment jurisprudence.

In the admittedly small arena of “failure to mitigate damages” cases, this outcome may seem palatable and even appropriate. But the implications of finding a required adjustment are far-reaching. If something as generic as a reasonableness standard is susceptible to required religious accommodation, what other purportedly generally applicable laws or standards are similarly vulnerable? Take, for example, Snyder v. Phelps, the Westboro Baptist Church case discussed above.14 14.See supra text accompanying note 5.Show More Although the Supreme Court decided the issue in the Church’s favor on free speech grounds,15 15.Snyder v. Phelps, 562 U.S. 443, 461 (2011).Show More suppose, instead, that it had tackled the free exercise question.

Should the tort of IIED be subject to required religious accommodation because it has exemptions for speech protected under the First Amendment’s Free Speech Clause? An aggressive exemption strategy to religious accommodation under Smith and Lukumi may suggest that the answer is yes. That outcome seems unsettling. It also begs for clarity on what laws or standards, if any, are so fundamental as to avoid required religious accommodation. This Note uses the finding of a required religious accommodation to the reasonable person standard to suggest the fundamental inadequacy of the Court’s aggressive exemption jurisprudence under the Free Exercise Clause.

The Role of the Doctrine of Laches in Undermining the Holocaust Expropriated Art Recovery Act

From 1933 to 1945, the Nazi regime looted art on a scale with few historical competitors. The Nazis used this state-sanctioned theft to dehumanize the Jewish population and carry out the “Aryanization” of German society.

To provide redress for the victims of Nazi looting, the United States and the international community adopted the Washington Principles in 1998—a set of guidelines intended to promote a “just and fair” solution for claims over Nazi-looted art. Unfortunately, despite this commitment, lawsuits to recover stolen artwork are often barred by time-based defenses.

In 2016, Congress passed the Holocaust Expropriated Art Recovery Act (“HEAR Act”) to promote resolution on the merits by effectively removing the statute of limitations as an affirmative defense. Surprisingly, however, Congress left the doctrine of laches available, thereby frustrating the effectiveness and stated purpose of the HEAR Act. The doctrine of laches bars a claim upon a showing that the claimant unreasonably delayed in bringing suit, and that the delay caused the artwork’s possessor to suffer prejudice. Yet because lawsuits for restitution of Nazi-looted artwork have only recently become viable, delay and the resulting prejudice—taking the form of lost evidence—are inherent in these claims. The doctrine of laches thereby undermines resolution on the merits, which is antithetical to the HEAR Act’s putative goals.

This Note argues that for the HEAR Act to provide the relief it ostensibly envisions, the doctrine of laches should be precluded as an available defense. Alternatively, the ability to assert the defense should be restricted to those parties who acquired contested artwork in true good faith. By revising the HEAR Act accordingly, a “just and fair” solution can be achieved.

Introduction

The destruction of Jewish cultural and economic identity was an integral component of the Nazi regime’s genocidal campaign.1 1.Ori Z. Soltes, Cultural Plunder and Restitution and Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460, 461–62 (2016).Show More The Nazis partly carried out this aim through the systematic looting of artwork, stripping the Jewish population of their possessions and casting them as outsiders.2 2.See Jonathan Petropoulos, Art as Politics in the Third Reich 14, 92–94 (1996); discussion infra Part I.Show More The scale of the theft highlights its importance to the Nazis—in 1948, the United States estimated that it had found approximately 10.7 million looted art and cultural objects.3 3.Presidential Advisory Comm’n on Holocaust Assets in the U.S., Plunder and Restitution: The U.S. and Holocaust Victims’ Assets (2000), at SR–97 [hereinafter Commission Report].Show More The United States and European governments set up restitution programs,4 4.Id. at SR–137 to SR–139.Show More though these efforts soon gave way to a focus on the Cold War.5 5.See Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, at xi (2017).Show More After the Soviet Union fell, however, interest re-emerged in the Holocaust, as Allied governments declassified archives and scholars devoted attention to the unresolved problem of Nazi-looted art.6 6.See Commission Report, supra note 3, at 4–5; O’Donnell, supra note 5, at 29, 46; Phillipe de Montebello, Dir., Metro. Museum of Art, Panel at National Press Club Luncheon: Art Plundered During the Holocaust (July 14, 1998), transcript available at https://www.metmuseum.org/-/media/files/about-the-met/provenance-research/philippe-de-montebello-transcript.pdf [https://perma.cc/7V4W-57G9]) (commenting that “the fall of the Iron Curtain” led to “the declassification of a host of national archives”).Show More In 1998, at the Washington Conference on Holocaust-Era Assets, the representatives of forty-four countries, including the United States, agreed to a set of guidelines known as the Washington Principles.7 7.See U.S. Dep’t of State & U.S. Holocaust Memorial Museum, Proceedings of the Washington Conference on Holocaust-Era Assets, app. G., at 791–92 (1998) [hereinafter Washington Principles]; Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, at 196–99 (2003).Show More This document set forth the parameters for countries to work within their own legal systems to promote the “just and fair” resolution of claims for Nazi-looted art.8 8.Washington Principles, supra note 7, at 972 (Principles VIII & IX).Show More Since the adoption of the Washington Principles, United States courts have heard a growing number of cases seeking the restitution of artwork stolen by the Nazis.9 9.See infra Part II.Show More

Despite the United States’ commitment to the Washington Principles, time-based defenses like the statute of limitations and its equitable counterpart, the doctrine of laches, have been used to bar many of these claims.10 10.See id.Show More A laches defense is intended to prevent a claimant from delaying in asserting her rights in a way that—in the context of this Note—harms the party in possession of disputed artwork.11 11.The doctrine is an application of equity’s maxim that its jurisdiction is meant to “aid[] the vigilant.” See Bert Demarsin, Has the Time (of Laches) Come? Recent Nazi-Era Art Litigation in the New York Forum, 59 Buff. L. Rev. 621, 627 n.28 (2011) (citing Stone v. Williams, 873 F.2d 620, 623 (2d Cir. 1989)).Show More Recognizing the obstacles posed by time-based defenses, Congress acted in 2016 to reduce the difficulties descendants face in obtaining restitution.12 12.See Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 3(2), 130 Stat. 1524, 1526.Show More The resulting legislation, the Holocaust Expropriated Art Recovery Act (“HEAR Act”), set a federal statute of limitations for actions seeking the recovery of Nazi-looted art.13 13.Id. § 5(a). The most common claims are for replevin and conversion. See, e.g., Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304, 315 (S.D.N.Y. 2018), aff’d on other grounds, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020) (mem.). For a summary of these causes of action, see Emily J. Henson, Comment, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners—Can Moral Obligations Be Translated Into Legal Duties?, 51 DePaul L. Rev. 1103, 1137–41 (2002).Show More This six-year limitations period starts running when a claimant gains knowledge of the “identity and location of the artwork” and “a possessory interest” in the artwork.14 14.Holocaust Expropriated Art Recovery Act § 5(a).Show More However, the HEAR Act’s final text did not address laches.15 15.See id. Compared to the initial draft discussed infra Section I.C, there is no mention of equitable defenses or the doctrine of laches in the Act’s operative provision.Show More Legislative history suggests that Congress intended for the defense to remain available. The initial draft explicitly precluded the doctrine of laches,16 16.S. 2763, 114th Cong. § 5(a) (2016).Show More but the enacted bill removed this language.17 17.Holocaust Expropriated Art Recovery Act § 5(a).Show More Congress knew that the change would restrict the HEAR Act’s impact and allow laches to frustrate the efforts of the very families the Act purported to help.18 18.S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. & Fed. Cts., 114th Cong. 2–3 (2016) (statement of Agnes Peresztegi, President, Comm’n for Art Recovery), https://www.judiciary.senate.gov/­meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/ETQ7-S8AQ] [hereinafter Peresztegi Testimony] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the cited hearing testimony transcript.).Show More

This Note focuses on Congress’s decision to leave laches intact—along with its consequences for claimants—and two possible revisions to the HEAR Act. By making the statute of limitations a non-issue in many disputes, Congress sought to ensure that these cases would be decided on the merits, thereby increasing the availability of restitution. Leaving laches intact, however, undermines that goal. A successful laches defense requires the party in possession19 19.The labels for the party seeking restitution and the party currently in possession of the artwork will occasionally change throughout the text. For the party in possession, this Note will generally use “possessor” and, in certain contexts, “purchaser.” For the party seeking restitution, this Note will use “claimant,” “victim,” or “descendant.” “Plaintiff” and “defendant,” while simple, do not always reflect the claimant and possessor, as some current possessors will bring declaratory suits as the plaintiff. See, e.g., Bakalar v. Vavra, 819 F. Supp. 2d 293, 294 (S.D.N.Y. 2011), aff’d, 500 F. App’x 6 (2d Cir. 2012).Show More of the artwork to show: (1) that the claimant unreasonably delayed in bringing suit against the possessor, and (2) that the delay caused prejudice to the possessor.20 20.Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (citing Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 17 F.3d 38, 44 (2d Cir. 1994); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980)).Show More This defense is frequently easy for possessors of Nazi-looted art to demonstrate. These claims are inevitably delayed because the world largely treated art restitution as “a closed chapter” for half a century after World War II.21 21.S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. and Fed. Cts., 114th Cong. 1 (2016) (statement of Monica Dugot, Int’l Dir. of Restitution, Senior Vice President, Christie’s Inc.), https://www.judiciary.senate.gov/meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/2TY6-KZY4] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the quoted hearing testimony transcript.).Show More Moreover, possessors can show prejudice based on lost evidence, as potential witnesses have passed away in the intervening decades. Even though such circumstances are inherent to these claims, courts have held that the doctrine of laches should prevent resolution on the merits.

Since passage of the HEAR Act, the tension between the legislation’s purpose to grant relief and the availability of laches has played out in two cases. The first, Zuckerman v. Metropolitan Museum of Art, in the Second Circuit, demonstrates how a laches defense can decide a dispute otherwise capable of resolution on the merits.22 22.928 F.3d 186, 193–94 (2d Cir. 2019).Show More The second, Reif v. Nagy, in New York state courts, shows how an expansive, albeit incorrect, purposive reading of the HEAR Act can sidestep laches and facilitate relief on the merits.23 23.80 N.Y.S.3d 629, 634–35 (N.Y. Sup. Ct. 2018) (taking note of the guidance provided by the HEAR Act’s purpose and holding that laches is unavailable); see also Simon J. Frankel & Sari Sharoni, Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016, 42 Colum. J.L. & Arts 157, 176–77 (2019) (concluding that Reif held laches unavailable under the HEAR Act).Show More Recently, the appellants in Zuckerman had their petition for certiorari to the Supreme Court denied,24 24.Zuckerman v. Metro. Museum of Art, 140 S. Ct. 1269 (2020) (mem.).Show More meaning that the availability of laches under the HEAR Act is now binding precedent in the Second Circuit. Reif, on the other hand, signals that the New York state courts may prove to be a more hospitable forum for claimants going forward.

It is not too late to aid survivors and their families in their quest for justice. Over a year after passing the HEAR Act, Congress enacted the Justice for Uncompensated Survivors Today (JUST) Act of 2017.25 25.Pub. L. No. 115-171, 132 Stat. 1288 (2018).Show More The JUST Act directs the State Department to report on the steps taken by countries that, like the United States, have themselves committed to promoting restitution for Holocaust survivors.26 26.Id. § 2(b).Show More And in early 2020, New York Governor Andrew Cuomo announced a conference “aimed at improving the State’s ability to help recover works of art and other property lost due to Nazi persecution.”27 27.Press Release, Governor Andrew M. Cuomo, On Holocaust Remembrance Day, Governor Cuomo Announces International Conference Aimed at Helping Victims of Nazi Crimes Recover Stolen Property (Jan. 27, 2020), https://www.governor.ny.gov/news/holocaust-remembrance-day-governor-cuomo-announces-international-conference-aimed-helping [https://perma.cc/ZR3S-TM86].Show More Congress should build on the political will in this area of bipartisan consensus28 28.Press Release, Senator Ted Cruz, Sens. Cruz, Cornyn Praise Unanimous Passage of the Bipartisan HEAR Act, (Dec. 10, 2016), https://www.cruz.senate.gov/?p=press_release&­id=2916 [https://perma.cc/3326-7EVS].Show More and modify the HEAR Act to ensure that claimants are able to resolve their claims on the merits.

Part I of this Note provides a brief history of Nazi looting as well as a history of the Washington Principles and other international and domestic initiatives prior to the HEAR Act. This background illustrates the moral and legal issues that Congress designed the Act to address. The remainder of Part I traces the HEAR Act’s legislative history and the explanations Congress did and did not offer for setting a statute of limitations while leaving laches untouched.

Part II then discusses a sample of the case law in the state and federal courts of New York, the international art capital of the world. Courts in New York have had frequent occasion to consider the application of laches to claims for artwork looted during World War II due to the state’s “demand and refusal” rule.29 29.See discussion infra Section II.A. Under this rule, the statute of limitations does not begin to run until the claimant demands that the possessor return the artwork, and the possessor refuses that demand. See Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966). As a result, laches has been invoked to reduce the potential unfairness that results from such a generous limitations period. Demarsin, supra note 11, at 621–22, 658.Show More

Part III presents the argument briefly described above—that application of the doctrine of laches to claims for restitution of Nazi-looted art is irreconcilable with the HEAR Act and the Washington Principles. Part III then proposes two solutions. The first, and preferable, solution is to preclude a laches defense entirely, faithful to the first draft of the HEAR Act. This would guarantee that the Act fulfills the Washington Principles’ call to promote “a just and fair” solution.30 30.Washington Principles, supra note 7, at 792 (Principles XIII & IX).Show More As a more moderate solution, courts should be directed to inquire into whether a possessor sufficiently investigated title to contested artwork. This will allow courts to determine whether current possessors acquired artwork in true good faith, or whether they have dealt in Nazi-looted art when problems with a piece’s provenance31 31.“Provenance is a technical art world term meaning documentation of origin or history of ownership.” Kelly Diane Walton, Leave No Stone Unturned: The Search for Art Stolen by the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9 Fordham Intell. Prop. Media & Ent. L.J. 549, 551–52 (1999). Provenance as used in this Note is therefore distinct from the actual ownership history of a work.Show More should have been apparent. Only when a possessor exercised appropriate diligence would a laches defense be available.

  1. * J.D., University of Virginia School of Law, 2020. I am grateful to Professor Julia Mahoney for her guidance throughout the drafting of this Note. Thank you to Samantha Caravello, Read Mills, and Anna Rennich for their thoughtful comments on earlier versions. I also owe thanks to the members of the Virginia Law Review, especially Andrew Kintner, for diligent editing and insightful feedback. All errors are my own. ↑
  2. Ori Z. Soltes, Cultural Plunder and Restitution and Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460, 461–62 (2016). ↑
  3. See Jonathan Petropoulos, Art as Politics in the Third Reich 14, 92–94 (1996); discussion infra Part I. ↑
  4. Presidential Advisory Comm’n on Holocaust Assets in the U.S., Plunder and Restitution: The U.S. and Holocaust Victims’ Assets (2000), at SR–97 [hereinafter Commission Report]. ↑
  5. Id. at SR–137 to SR–139. ↑
  6. See Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, at xi (2017). ↑
  7. See Commission Report, supra note 3, at 4–5; O’Donnell, supra note 5, at 29, 46; Phillipe de Montebello, Dir., Metro. Museum of Art, Panel at National Press Club Luncheon: Art Plundered During the Holocaust (July 14, 1998), transcript available at https://www.metmuseum.org/-/media/files/about-the-met/provenance-research/philippe-de-montebello-transcript.pdf [https://perma.cc/7V4W-57G9]) (commenting that “the fall of the Iron Curtain” led to “the declassification of a host of national archives”). ↑
  8. See U.S. Dep’t of State & U.S. Holocaust Memorial Museum, Proceedings of the Washington Conference on Holocaust-Era Assets, app. G., at 791–92 (1998) [hereinafter Washington Principles]; Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, at 196–99 (2003). ↑
  9. Washington Principles, supra note 7, at 972 (Principles VIII & IX). ↑
  10. See infra Part II. ↑
  11. See id. ↑
  12. The doctrine is an application of equity’s maxim that its jurisdiction is meant to “aid[] the vigilant.” See Bert Demarsin, Has the Time (of Laches) Come? Recent Nazi-Era Art Litigation in the New York Forum, 59 Buff. L. Rev. 621, 627 n.28 (2011) (citing Stone v. Williams, 873 F.2d 620, 623 (2d Cir. 1989)). ↑
  13. See Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 3(2), 130 Stat. 1524, 1526. ↑
  14. Id. § 5(a). The most common claims are for replevin and conversion. See, e.g., Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304, 315 (S.D.N.Y. 2018), aff’d on other grounds, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020) (mem.). For a summary of these causes of action, see Emily J. Henson, Comment, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners—Can Moral Obligations Be Translated Into Legal Duties?, 51 DePaul L. Rev. 1103, 1137–41 (2002). ↑
  15. Holocaust Expropriated Art Recovery Act § 5(a). ↑
  16. See id. Compared to the initial draft discussed infra Section I.C, there is no mention of equitable defenses or the doctrine of laches in the Act’s operative provision. ↑
  17. S. 2763, 114th Cong. § 5(a) (2016). ↑
  18. Holocaust Expropriated Art Recovery Act § 5(a). ↑
  19. S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. & Fed. Cts., 114th Cong. 2–3 (2016) (statement of Agnes Peresztegi, President, Comm’n for Art Recovery), https://www.judiciary.senate.gov/­meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/ETQ7-S8AQ] [hereinafter Peresztegi Testimony] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the cited hearing testimony transcript.). ↑
  20. The labels for the party seeking restitution and the party currently in possession of the artwork will occasionally change throughout the text. For the party in possession, this Note will generally use “possessor” and, in certain contexts, “purchaser.” For the party seeking restitution, this Note will use “claimant,” “victim,” or “descendant.” “Plaintiff” and “defendant,” while simple, do not always reflect the claimant and possessor, as some current possessors will bring declaratory suits as the plaintiff. See, e.g., Bakalar v. Vavra, 819 F. Supp. 2d 293, 294 (S.D.N.Y. 2011), aff’d, 500 F. App’x 6 (2d Cir. 2012). ↑
  21. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (citing Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 17 F.3d 38, 44 (2d Cir. 1994); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980)). ↑
  22. S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. and Fed. Cts., 114th Cong. 1 (2016) (statement of Monica Dugot, Int’l Dir. of Restitution, Senior Vice President, Christie’s Inc.), https://www.judiciary.senate.gov/meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/2TY6-KZY4] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the quoted hearing testimony transcript.). ↑
  23. 928 F.3d 186, 193–94 (2d Cir. 2019). ↑
  24. 80 N.Y.S.3d 629, 634–35 (N.Y. Sup. Ct. 2018) (taking note of the guidance provided by the HEAR Act’s purpose and holding that laches is unavailable); see also Simon J. Frankel & Sari Sharoni, Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016, 42 Colum. J.L. & Arts 157, 176–77 (2019) (concluding that Reif held laches unavailable under the HEAR Act). ↑
  25. Zuckerman v. Metro. Museum of Art, 140 S. Ct. 1269 (2020) (mem.). ↑
  26. Pub. L. No. 115-171, 132 Stat. 1288 (2018). ↑
  27. Id. § 2(b). ↑
  28. Press Release, Governor Andrew M. Cuomo, On Holocaust Remembrance Day, Governor Cuomo Announces International Conference Aimed at Helping Victims of Nazi Crimes Recover Stolen Property (Jan. 27, 2020), https://www.governor.ny.gov/news/holocaust-remembrance-day-governor-cuomo-announces-international-conference-aimed-helping [https://perma.cc/ZR3S-TM86]. ↑
  29. Press Release, Senator Ted Cruz, Sens. Cruz, Cornyn Praise Unanimous Passage of the Bipartisan HEAR Act, (Dec. 10, 2016), https://www.cruz.senate.gov/?p=press_release&­id=2916 [https://perma.cc/3326-7EVS]. ↑
  30. See discussion infra Section II.A. Under this rule, the statute of limitations does not begin to run until the claimant demands that the possessor return the artwork, and the possessor refuses that demand. See Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966). As a result, laches has been invoked to reduce the potential unfairness that results from such a generous limitations period. Demarsin, supra note 11, at 621–22, 658. ↑
  31. Washington Principles, supra note 7, at 792 (Principles XIII & IX). ↑
  32. “Provenance is a technical art world term meaning documentation of origin or history of ownership.” Kelly Diane Walton, Leave No Stone Unturned: The Search for Art Stolen by the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9 Fordham Intell. Prop. Media & Ent. L.J. 549, 551–52 (1999). Provenance as used in this Note is therefore distinct from the actual ownership history of a work. ↑

College Athletics, Coercion, and the Establishment Clause: The Case of Clemson Football

Once a person turns eighteen and goes to college, do they immediately become less susceptible to the influences of those in power and their peers? The Supreme Court tells us that they do. While consistently willing to find that prayers at middle school graduations and high school football games are violations of the Establishment Clause under the coercion test, the Court has stated that adults are more mature and “presumably” less susceptible to religious coercion. Scholars and the circuit courts of appeals have taken varying approaches and arrived at different outcomes when considering adult claimants. None, however, have articulated a uniform test for adults to establish coercion. Using indicative language from the Supreme Court, this Note argues for the first time that adult claimants must show that a State action has a “real and substantial likelihood” of coercion in order to bring a successful Establishment Clause challenge. It further proposes that a spectrum of susceptibility to coercion exists under the Establishment Clause based on certain populations’ ages and respective environments.

After articulating the standard of coercion for adults and the spectrum of susceptibility to coercion, this Note applies both to a prominent example of overt incorporation of religion into a public university—the Clemson University football program. The Clemson football coaching staff unabashedly integrates religion into many aspects of the program, from Bible studies led and organized by staff to baptisms of players on the practice field. Using psychological and educational research about the effects of coaches and teammates on a college student-athlete’s values, beliefs, and behaviors, this Note argues that college student-athletes are uniquely prone to coercion and places them on the spectrum of susceptibility to coercion. Finally, it applies the standard of coercion for adults to conclude that religious aspects of Clemson’s football program are unconstitutional under the Establishment Clause.

Introduction

Situated in the small college town of Clemson, South Carolina, the Clemson University (“Clemson”) football team boasts quite a record. With NCAA College Football Playoff (“CFP”) National Championships in 2016 and 2018, consecutive CFP appearances and Atlantic Coast Conference Championships from 2015 to 2019, and at least ten wins in each season from 2011 to 2019, head coach Dabo Swinney has built a culture of success in his program around his slogan “all in.”1 1.National Champions, https://daboswinney.com/championships/ [https://perma.cc/9S7H-SPP4] (last visited Sept. 28, 2020); Greg Wallace, Inside a Top 10 College Football Team’s Summer Conditioning Program, Bleacher Rep. (June 6, 2014), https://bleacher­report.com/articles/2088395-inside-a-top-10-college-football-teams-summer-conditioning-program [https://perma.cc/274C-3ZG5] (internal quotation marks omitted).Show More While the students, alumni, and fans of Clemson football may consider football their religion, there is a tenet of actual sectarian religion deeply ingrained and woven into the program’s culture.2 2.Tim Rohan, Faith, Football and the Fervent Religious Culture at Dabo Swinney’s Clemson, Sports Illustrated (Sept. 4, 2019), https://www.si.com/college-football/2019/09/04/clemson-dabo-swinney-religion-culture [https://perma.cc/46JS-8ZGA].Show More As documented by the Freedom from Religion Foundation’s (“FFRF”) 2014 letter sent to Clemson’s Senior Associate General Counsel, several of the program’s practices—which originate from the coaching staff’s conduct and are not student-led or organized—indicate not only an “endorsement of religion over nonreligion,” but also a preference for “Christian worship.”3 3.Letter from Patrick C. Elliott, Staff Att’y, Freedom from Religion Found., to Erin Swan Lauderdale, Senior Assoc. Gen. Couns., Clemson Univ. 1 (Apr. 10, 2014) [hereinafter FFRF Letter], https://ffrf.org/images/clemson_letter.pdf [https://perma.cc/Y26K-4HUA]. FFRF sent this letter to Clemson after they reviewed records obtained through a FOIA request. Id.Show More Coach Swinney has maintained an “an outwardly religious program.”4 4.Kevin Trahan, Freedom from Religion Foundation Complains About Clemson Football Program, SBNation (Apr. 15, 2014), https://www.sbnation.com/college-football/2014/4/15/5616602/clemson-football-dabo-swinney-religious-freedom-complaint.Show More Quite simply, “[a]t Clemson, God is everywhere.”5 5.Brad Wolverton, With God on Our Side, Chron. of Higher Educ. (Nov. 24, 2013), https://www.chronicle.com/article/With-God-on-Our-Side/143231 [https://perma.cc/7Q3G-M4PG].Show More

In 2011, James Trapp became the official chaplain of the football team at Coach Swinney’s personal invitation and insistence.6 6.FFRF Letter, supra note 3, at 1.Show More In his paid role as chaplain, Mr. Trapp went beyond simply leading team prayers. He “was regularly given access to the entire football team in between drills for the purpose of bible study,” maintained an office in the Jervey Athletic Center where he kept Bibles for distribution and displayed Bible quotes, and planned and facilitated sessions on “being baptized” in the athletic center.7 7.Id. at 2–3.Show More Mr. Trapp also organized more than eighty devotionals for the football team between March 2012 and April 2013, which were approved by Coach Swinney and led by members of the coaching staff.8 8.Id. at 4.Show More Further, he organized the team’s transportation via coach buses to local churches for annual “Church Day[s]” during training camp.9 9.Id.Show More

Journalists have reported other instances of the coaching staff’s endorsement of religion. In the fall of 2012, star wide receiver DeAndre Hopkins was baptized on the field in his uniform and pads at the conclusion of practice.10 10.Rohan, supra note 2; see also Wolverton, supra note 5 (describing DeAndre Hopkins’s baptism in a livestock trough on the practice field).Show More Then-Assistant Coach Jeff Scott even tweeted a photo that captured the scene.11 11.Coach Jeff Scott (@coach_jeffscott), Twitter (Sept. 2, 2012, 10:14 PM), https://twitter.com/coach_jeffscott/status/24244533830313984.Show More Following Hopkins’s baptism, it is estimated that between ten and fifteen player baptisms occurred over the next two seasons—many of which took place during camp in a pond by the practice field.12 12.Rohan, supra note 2.Show More Coach Swinney tells recruits and their families that he is a Christian and, if they “have a problem with that, [they] don’t have to be [there].”13 13.Wolverton, supra note 5.Show More One recruit’s mother distinctly remembers Coach Swinney’s guarantee “that every single player that comes through this program will hear about the Gospel of Christ.”14 14.Rohan, supra note 2.Show More

If Clemson were a public high school instead of a public university, this situation would present a clear violation of the Establishment Clause of the First Amendment.15 15.See Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”).Show More The Supreme Court has stated, however, that college students “are . . . young adults” and are therefore “less impressionable than younger students.”16 16.Widmar v. Vincent, 454 U.S. 263, 274 n.14 (1981). Widmar was decided on free speech grounds as the Court did not find the State’s interest in creating more separation between church and state than required by the Establishment Clause “sufficiently ‘compelling’ to justify content-based discrimination against respondents’ religious speech.” Id. at 276. For further discussion of circuit courts of appeals’ application of Widmar to the coercion test in cases involving higher education, see also infra notes 110–12 and accompanying text.Show More Yet, the Court has not spoken directly on the issue of religious coercion with respect to adult college students at a public university. While the religious nature of Clemson’s football program presents only one example of overt incorporation of religion at a public university, the initial, more important, and unanswered question is what must adult claimants show in order to litigate a successful Establishment Clause challenge.17 17.By “adult,” I mean individuals who have reached the age of majority in their respective states.Show More

Using the prominent example of Clemson football,18 18.Clemson’s football program presents one of many examples of the incorporation of religion into college football. For examples of other football programs that have hired chaplains, see Freedom from Religion Found., Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields into Mission Fields 13–15 (2015) [hereinafter Pray to Play], https://ffrf.org/images/Pray_To_Play_FINAL_REPORT1.pdf [https://perma.cc/A4QB-T8V­H]. Examples of the incorporation of religion can also be found in other college sports, such as basketball. See, e.g., Whitelaw Reid, Man of Faith: How Tony Bennett’s Religion Has Shaped His UVa Tenure, Daily Progress (Nov. 24, 2010), https://www.dailyprogress.com/­sports/man-of-faith-how-tony-bennett-s-religion-has-shaped/article_de7b70b5-54f2-5f94-bc4f-dc4449748bb8.html [https://perma.cc/CM7C-K9JR] (“As a number of recruits have signed to play for [Tony] Bennett, the first thing they’ve talked about . . . . [is] the connection they’ve felt with Bennett through God.”).Show More this Note answers that question by articulating a coercion standard for adults, arguing that a spectrum of susceptibility to coercion exists under the Establishment Clause, and suggesting where college student-athletes fit along that spectrum. While some scholars have written about the Establishment Clause and college athletics, they do not apply the modern coercion test,19 19.The modern coercion test focuses on psychological coercion as articulated in Lee v. Weisman. See infra Section I.B.Show More articulate a coercion standard for adults, or advance a theory regarding a range of susceptibility to coercion. For example, Clayton Adams, emphasizing a need to protect a “government employee’s right to speak on matters of public concern,” applied a “modified coercion test” to religious aspects of various college football programs—including the Clemson football program.20 20.Clayton D. Adams, Personal Foul, Roughing the Speaker: The Illusory War Between the Establishment Clause & College Football, 84 Miss. L.J. Supra 167, 183, 194–202 (2015).Show More Kris Bryant suggested that the Court should adopt a “Coercion/Endorsement Test ‘with teeth’” when analyzing the Establishment Clause claims of public university students.21 21.Kris Bryant, Take a Knee: Applying the First Amendment to Locker Room Prayers and Religion in College Sports, 36 J. Coll. & U.L. 329, 359–60 (2009).Show More Gil Fried and Lisa Bradley briefly suggested that there is an “Establishment Clause case law scale from elementary school prayer to prayer opening legislative sessions cases” and recognized that “college prayer cases” fall “in between these two ends of the continuum” without theorizing further.22 22.Gil Fried & Lisa Bradley, Applying the First Amendment to Prayer in a Public University Locker Room: An Athlete’s and Coach’s Perspective, 4 Marq. Sports L.J. 301, 303, 310–13 (1994).Show More Fried and Bradley, however, then applied the now disfavored Lemon test to analyze college locker room prayers.23 23.Id.Show More In a similar vein, other scholars have addressed the Establishment Clause’s application to students at public universities, or adults in general, without applying the psychological coercion test, articulating a coercion standard for adults, or proposing a theory regarding a range of susceptibility to coercion.24 24.See, e.g., Phillip E. Marbury, Comment, Audience Maturity and the Object of the Establishment Clause, 6 Liberty U. L. Rev.565, 579 (2012) (arguing that “audience maturity is a significant factor” in the Court’s modern Establishment Clause jurisprudence); Elizabeth B. Halligan, Coercing Adults? The Fourth Circuit and the Acceptability of Religious Expression in Government Settings, 57 S.C. L. Rev.923, 924–26 (2006) (analyzing Mellen v. Bunting, a Fourth Circuit case that struck down a prayer at a public military university because of public prayer’s potential impact on adult audience members); Deanna N. Pihos, Assuming Maturity Matters: The Limited Reach of the Establishment Clause at Public Universities, 90 Cornell L. Rev.1349, 1373 (2005) (arguing that the respective ages of high school and college students is a “questionable distinction on which to create two different standards of Establishment Clause protection” under the coercion, Lemon, and endorsement tests).Show More

This Note addresses the gap in the literature regarding how to treat adult claimants under the coercion test of the Establishment Clause. Instead of suggesting a new or modified coercion test or using a now disfavored test, this Note articulates a practical coercion standard for adults that is rooted in the current jurisprudence. Part I of this Note traces the development of the modern coercion test in the Supreme Court and the test’s application to cases involving higher education in the circuit courts of appeals. Then, Part II proposes a coercion standard for adults and, based on their respective environments, places various populations along a spectrum according to their level of susceptibility to coercion. Finally, Part III applies the coercion standard for adults and coercion spectrum to college student-athletes. It argues that college student-athletes should be seen as more susceptible to coercion than typical college students and that various religious-oriented aspects of the Clemson football program violate the Establishment Clause. A conclusion follows.

  1. * J.D., University of Virginia School of Law, 2021; M.Ed., Clemson University, 2015. I am especially grateful to Professor Micah Schwartzman for sparking this research and for supporting me in the development of this Note. I also sincerely appreciate the members of the Virginia Law Review who assisted in the editing and preparation of the Note—especially Olivia Roat. ↑
  2. National Champions, https://daboswinney.com/championships/ [https://perma.cc/9S7H-SPP4] (last visited Sept. 28, 2020); Greg Wallace, Inside a Top 10 College Football Team’s Summer Conditioning Program, Bleacher Rep. (June 6, 2014), https://bleacher­report.com/articles/2088395-inside-a-top-10-college-football-teams-summer-conditioning-program [https://perma.cc/274C-3ZG5] (internal quotation marks omitted). ↑
  3.  Tim Rohan, Faith, Football and the Fervent Religious Culture at Dabo Swinney’s Clemson, Sports Illustrated (Sept. 4, 2019), https://www.si.com/college-football/2019/09/04/
    clemson-dabo-swinney-religion-culture [https://perma.cc/46JS-8ZGA]. ↑
  4. Letter from Patrick C. Elliott, Staff Att’y, Freedom from Religion Found., to Erin Swan Lauderdale, Senior Assoc. Gen. Couns., Clemson Univ. 1 (Apr. 10, 2014) [hereinafter FFRF Letter], https://ffrf.org/images/clemson_letter.pdf [https://perma.cc/Y26K-4HUA]. FFRF sent this letter to Clemson after they reviewed records obtained through a FOIA request. Id. ↑
  5. Kevin Trahan, Freedom from Religion Foundation Complains About Clemson Football Program, SBNation (Apr. 15, 2014), https://www.sbnation.com/college-football/2014/4/15/
    5616602/clemson-football-dabo-swinney-religious-freedom-complaint. ↑
  6. Brad Wolverton, With God on Our Side, Chron. of Higher Educ. (Nov. 24, 2013), https://www.chronicle.com/article/With-God-on-Our-Side/143231 [https://perma.cc/7Q3G-M4PG]. ↑
  7. FFRF Letter, supra note 3, at 1. ↑
  8. Id. at 2–3. ↑
  9. Id. at 4. ↑
  10. Id. ↑
  11. Rohan, supra note 2; see also Wolverton, supra note 5 (describing DeAndre Hopkins’s baptism in a livestock trough on the practice field). ↑
  12.  Coach Jeff Scott (@coach_jeffscott), Twitter (Sept. 2, 2012, 10:14 PM), https://twitter.com/coach_jeffscott/status/24244533830313984. ↑
  13. Rohan, supra note 2. ↑
  14. Wolverton, supra note 5. ↑
  15. Rohan, supra note 2. ↑
  16. See Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”). ↑
  17. Widmar v. Vincent, 454 U.S. 263, 274 n.14 (1981). Widmar was decided on free speech grounds as the Court did not find the State’s interest in creating more separation between church and state than required by the Establishment Clause “sufficiently ‘compelling’ to justify content-based discrimination against respondents’ religious speech.” Id. at 276. For further discussion of circuit courts of appeals’ application of Widmar to the coercion test in cases involving higher education, see also infra notes 110–12 and accompanying text. ↑
  18. By “adult,” I mean individuals who have reached the age of majority in their respective states. ↑
  19. Clemson’s football program presents one of many examples of the incorporation of religion into college football. For examples of other football programs that have hired chaplains, see Freedom from Religion Found., Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields into Mission Fields 13–15 (2015) [hereinafter Pray to Play], https://ffrf.org/images/Pray_To_Play_FINAL_REPORT1.pdf [https://perma.cc/A4QB-T8V­H]. Examples of the incorporation of religion can also be found in other college sports, such as basketball. See, e.g., Whitelaw Reid, Man of Faith: How Tony Bennett’s Religion Has Shaped His UVa Tenure, Daily Progress (Nov. 24, 2010), https://www.dailyprogress.com/­sports/man-of-faith-how-tony-bennett-s-religion-has-shaped/article_de7b70b5-54f2-5f94-bc4f-dc4449748bb8.html [https://perma.cc/CM7C-K9JR] (“As a number of recruits have signed to play for [Tony] Bennett, the first thing they’ve talked about . . . . [is] the connection they’ve felt with Bennett through God.”). ↑
  20. The modern coercion test focuses on psychological coercion as articulated in Lee v. Weisman. See infra Section I.B. ↑
  21. Clayton D. Adams, Personal Foul, Roughing the Speaker: The Illusory War Between the Establishment Clause & College Football,
    84

    Miss. L.J. Supra

    167

    , 183, 194–202 (2015). ↑

  22. Kris Bryant, Take a Knee: Applying the First Amendment to Locker Room Prayers and Religion in College Sports, 36 J. Coll. & U.L
    .

    329, 359–60 (2009). ↑

  23. Gil Fried & Lisa Bradley, Applying the First Amendment to Prayer in a Public University Locker Room: An Athlete’s and Coach’s Perspective, 4 Marq. Sports L.J. 301, 303, 310–13 (1994). ↑
  24. Id. ↑
  25.  See, e.g., Phillip E. Marbury, Comment, Audience Maturity and the Object of the Establishment Clause, 6 Liberty U. L. Rev.

    565, 579 (2012) (arguing that “audience maturity is a significant factor” in the Court’s modern Establishment Clause jurisprudence); Elizabeth B. Halligan, Coercing Adults? The Fourth Circuit and the Acceptability of Religious Expression in Government Settings, 57 S.C. L. Rev.

    923, 924–26 (2006) (analyzing Mellen v. Bunting, a Fourth Circuit case that struck down a prayer at a public military university because of public prayer’s potential impact on adult audience members); Deanna N. Pihos, Assuming Maturity Matters: The Limited Reach of the Establishment Clause at Public Universities, 90 Cornell L. Rev.

    1349, 1373 (2005) (arguing that the respective ages of high school and college students is a “questionable distinction on which to create two different standards of Establishment Clause protection” under the coercion, Lemon, and endorsement tests). ↑

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