Mirror of Justice

Establishment Clause and Exemptions

Michael, Rick, and others,

Following up on the previous exchange:  There have indeed been theories "percolating" for some time that exemptions to preserve the autonomy of religious organizations might rest on Establishment Clause principles of separation and non-entanglement -- which stem from the historical fact that established churches were not only supported, but were also regulated, by the government.   Principles of institutional separation and non-entanglement might survive even if one concludes that a general right of religious exemption under the Free Exercise Clause for individuals as well as institutions creates too great a risk of anarchy (see Employment Division v. Smith).  The idea of exemptions based on non-entanglement goes back in the modern case law at least as far as NLRB v. Catholic Bishop, 440 U.S. 490 (1979), where the exemption of parochial schools from collective-bargaining requirements with teachers was located in notions of autonomy and non-entanglement without reference to which 1st Amendment clause was involved.  You could say the idea even goes back to the entanglement prong of Lemon v. Kurtzman itself, since the theory for invalidating the state aid to religious schools in Lemon was that the aid was accompanied by regulations that interfered with the schools' autonomy.  403 U.S. 602, 619-20 (1971).  Some of the cases about internal church disputes also suggest that church autonomy from governmental involvement can rest on both Religion Clauses.  A relatively early article on this is Carl H. Esbeck,  Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 Wash. & Lee L. Rev. 347 (1984).  At least one of the many recent cases protecting religious organizations from liability for terminating clergy or clergy-like employees grounds that protection in part in the Establishment Clause.  E.E.O.C. v. Catholic University, 83 F.3d 455, 467 (D.C. Cir. 1996).

Tom B.

Further Response to Rick

Thanks to Rick for continuing the conversation (here).

About Rick's first point:  Rick seems to me to be entertaining the possibility that there should be *two* nonestablishment norms, not one--one norm for the federal government, another for state governments.   My assumption is that there is one nonestablishment norm--a norm that governs both the federal government and state governments.  My question, in the essay:  What is the best understanding of this (one) norm?

About Rick's second point:  "The First Amendment refers to 'mak[ing] law.'  Arguably, symbolic expression -- e.g., putting up a display -- is not lawmaking.  If it is not, then is it clear that the same non-establishment norm should apply?"  Yes, Ithink it is clear:  There is one nonestablishment norm, and it applies to all government action, whether or not the action is legislative in character.  (Does Rick or anyone else reading this think that the nonestablishment norm does *not* forbid government to  put up displays meant to communicate that insofar as the government is concerned, "Christianity is the best--the truest, the most spiritually efficacious, etc.--religion"?)  I'm with Michael McConnell on this:  Post-incorporation, the norm is that government may not establish religion (not that government may not make a law establishing religion).  My question, again:  What is the best understanding of this norm?   

About Rick's third point:  "Certainly, the matter sounds in free exercise, but there are, in fact, 'nonestablishment theories percolating out there' that would seem to suggest that Establishment Clause has work to do here, too."  That's interesting.  I did not know that.  I'd like to hear something about the theory or theories--enough to begin to assess its or their plausibility.

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Welcome to Helen Alvare

I am happy to announce yet another terrific addition to the MOJ blogistas. Helen Alvare joins us today from the law faculty at Catholic, where she teaches courses in family law and legislation. She also brings to us as her outstanding experience in both the general counsel's and pro-life offices at the National Conference of Catholic Bishops. Please see her bio linked in the sidebar for more information about her. I had the good fortune to share a podium with Helen at St. Tom's recent conference on Pro-Life Progressivism where she presented a compelling paper on the significance of the Catholic conception of the family for social policy. Helen is one of those Catholic scholars who is thinking seriously about the implications of Catholic thought not just for the classic Church-State constitutional issues (not that those aren't important) but for rethinking other aspects of substantive law. Please join me in welcoming Helen to MOJ.

--Mark

Response to Michael

Thanks to Michael for responding so quickly to the questions I floated about his St. Thomas article on the non-establishment norm.  From Michael's post, I'm afraid that I did more to muddy the waters than to move the ball.  (Mixed-metaphors and hoary cliches alert!). 

First, Michael is right, of course, that my doubts about the historical and textual warrants for the proposition that the nonestablishment norm applies to the states as well as to the federal government is "a rather different project" than the one Michael takes on in his article, and that these doubts are, probably, of "much less practical interest" than Michael's efforts to supply content to the Clause that we -- for better or worse -- have.  Still, it seems to me that the "federalism" question and the "content of the norm" question are related, it seems to me.  And, an effort to identify the correct content of the norm will, I think, take us to questions about the governments to which the norm was thought to apply.  In any event, the incorporation of the EC is, I agree, "bedrock" (or, as I tell my students, "water under the bridge.").

Second, Michael asks about the distinction I raised "between government's 'affirming religious premises' on the one hand and its 'legislating or punishing'  on the other."  I meant to raise the question whether the non-establishment norm, as Michael defines it, applies to some state actions -- passing laws that constrain, punish, regulate, prescribe behavior -- in the same way that it applies to others -- expression by government officials, displaying symbols on public property, etc.  The First Amendment refers to "mak[ing] law."  Arguably, symbolic expression -- e.g., putting up a display -- is not lawmaking.  If it is not, then is it clear that the same non-establishment norm should apply?

Third, I asked whether the Establishment Clause, as opposed to the Free Exercise Clause, might require exemptions for churches and religious communities from certain anti-discrimination or other regulations (e.g., a requirement that Catholic Charities provide contraceptives coverage, or that the Catholic Church ordain women).  At present, it is not clear where such an exemption -- if one were constitutionally required at all -- would come from.  Certainly, the matter sounds in free exercise, but there are, in fact, "nonestablishment theories percolating out there" that would seem to suggest that Establishment Clause has work to do here, too.

Rick

Conference Announcement

On September 15th and 16th, the Yale Center for Faith and Culture is hosting a conference that will be of interest to MoJ readers, "Religiously Incorrect? Public Faith in a Pluralistic World."  Participants include Yale law prof Stephen Carter, Boston University sociology prof Nancy Ammerman, Yale theology prof Miroslav Volf, Rev. Floyd Flake, Judge Emilio Garza (5th Cir.), Judge Robert Henry (10th Cir.), and Judge Joan Gottschall (N.D. Ill.).

Rob

Response to Rick

Thanks to Rick for his post this morning.

1.  Rick writes:  "[T]here are some matters that Michael appears willing to take as given -- e.g., that the Establishment Clause itself is correctly understood as constraining state and local governments ...--that I cannot help believing call for additional examination."  Well, yes.  But given that the nonestablishment norm applies to the states as well as to the federal government--this is, after all, constitutional bedrock--my interest was in asking what the nonestablishment norm is best understood to mean, as a general matter.  Asking whether there is an adequate historical warrant for  the proposition that the nonestablishment norm applies to the states as well as to the federal government is a rather different project.  Because that proposition is constitutional bedrock, the historical question is of much less practical interest than otherwise it would be.  In any event, I wonder whether there's more to say about the historical question than has already been said by various disputants (Curtis, Lash, Smith, Bybee, etc.)

2.  Rick also writes:  "[T]here are some matters that Michael appears willing to take as given -- e.g., ... that 'affirming religious premises', as opposed to legislating or punishing, is the kind of state action to which the Clause can be applied --  that I cannot help believing call for additional examination."  I don't understand Rick's distinction between government's "affirming religious premises" on the one hand and its "legislating or punishing" on the other.  At any rate, that is not *my* distinction:  It is in the course of "legislating or punishing", among other activities, that government affirms premises, some of which may be religious.  Pace Cool Hand Luke, what we  (may) have here is a failure to communicate.

3.  Finally, Rick writes:  "I would also wonder if Michael's proposed answer is able to respond well to what I regard as a serious Religion Clause problem, namely, the possibility that government efforts to enforce its own norms through (for example) anti-discrimination statutes could interfere with the independence and freedom of churches and religious communities.  To put the matter more directly, does the Establishment Clause require an exemption (assuming that the Free Exercise Clause does not, given Smith) for churches, religious schools, etc. from anti-discrimination laws?"

I am puzzled by this question.  I would have thought that the problem Rick identifies is a free exercise problem, not an establishment problem--or, put another way, a religious liberty problem, not an establishment problem.  Why should we think that the nonestablishment norm--as distinct from the free exercise norm--might require an exemption?  Is there a nonestablishment theory percolating out there that makes Rick's question less puzzling?

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More on "Solidarity"

I would like to thank Michael and Rick for inviting me to respond to the valuable issues and points they have raised. I am grateful to both for their thoughts and work elsewhere in which they have raised and developed significant points meriting diligent study and discussion. I take this opportunity to acknowledge that one MOJ reader has vigorously responded to me about my remark that I am searching not for the simple but the solid answer. The purpose of my making this distinction is not to suggest that a solid answer needs to be complex. The principal reason for my making this point was based on an assessment of Justice Thomas contained in his concurring decision in Rosenberger v. Rector and Visitors of U.of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring) where he states that “our Establishment Clause jurisprudence is in hopeless disarray.” I hope that my modest contribution helps others see the need for constructing a definition a solid and enduring definition of this important component of our basic law, the U. S. Constitution, so that we will have a solid understanding of what the Establishment Clause prohibits and what it does not. Without this definition, I fear that the “disarray” will continue.

In my view a solid definition can begin with consideration of what the Founders were thinking about when the First Amendment was being drafted. If some conclude that I am advocating an “original intent” approach, I must add that any effort to define and interpret a legal text should take into account what objectives the drafters had in mind and what they were thinking and discussing amongst themselves. This is not always an easy enterprise, but as I tried to point out in my essay Method in Interpretation: Practical Wisdom and the Search for Meaning in Public Legal Texts, 68 Mississippi Law Journal 225 (1998), it is an exercise that is rewarding.

By taking this approach, we of the early twenty-first century will have a better and more solid understanding of the concerns about establishment that are integral to the Constitution’s meaning. Michael’s essay to which he referred in his recent posting proposes and investigates several alternatives helpful to the debate of the meaning of “establishment.” Research into history reveals what served as a catalyst for the provision we are discussing. It is my view that there is a violation of Establishment Clause if Congress were to enact legislation stating that: (1) Americans will be taxed to support the “______ religion”; (2) Americans, in order to vote, “must provide evidence to voting authorities that they have received __________ according to the ___________ faith.” These points are illustrative of Rick’s drawing attention to the matter of coercion raised by Justice Thomas in the Elk Grove v. Newdow case. The list of illustrations about coercion could go on, but I hope I have made my point.

I do not believe that there is a violation of the Establishment Clause when Congress or the States make available public resources which religious institutions and other non-religious entities can enjoy. There is no coercion involved, but I do think that the Founders were concerned about Congress (and now the States) coercing citizens to do something religious or anti-religious (which also raises the Free Exercise issue) without providing alternatives in which Americans might be able to have some options. In this context, I do not consider that the government (Federal or State) has violated the Establishment Clause when it makes public resources available to anybody or group for certain categories of activities—let us say a meeting. So if the Elks, the Scouts, 4-H, the Audubon Society, the League of Women Voters, and the Secularist Society can use the public school auditorium for their meetings free of charge, so can Hadassah, the Christian Fellowship, the Islamic Society, and Our Lady of Mercy parish. I don’t think this was a concern for the Founders, and it should not be a concern for us today. Favoritism would present problems, of course, because it would suggest use of a milder form or coercion.

A solid definition which takes into account the drafters’ concerns, amongst other elements that I identify and discuss in my Mississippi Law Journal essay, could well have given Americans a better understanding of the meaning of the Establishment Clause. I think if we had the benefit of this understanding, we would not have had the cases decided on Monday concerning the Ten Commandments. Then, we could join Mark in discussing Kelo!   RJA sj

Michael Perry's position

Thanks to Michael for posting his St. Thomas article, which I had been fortunate to read a while ago, and for soliciting MOJ-ers' views on his claims.  Michael asks, in the article, "what sorts of government action should we understand the nonestablishment norm to forbid?"  The heart of answer, I think, is this:

Government may not act for the purpose of favoring any church in relation to any other church on the basis of the view that the favored church is, as a church, as a community of faith, better along one or more dimensions of value -- truer, for example, or more efficacious spiritually, or more authentically American.

Michael goes on to explain, among other things, why some government affirmations of "religious premises" do not violate this norm.  And, he appears to endorse Justice Scalia's view (which Jack Balkin has criticized forcefully here) that the nonestablishment norm does not disable the government from affirming religious premises that are "sectarian" as between the great monotheisms (Judaism, Islam, Christianity), on the one hand, and other religions (e.g., Buddhism, Hinduism) on the other.

Michael was kind enough to ask for my reactions:  I think that Michael's proposed answer to the question, "what does the Establishment Clause forbid", is a good one, and that his article is as valuable as it is clear.  That said, there are some matters that Michael appears willing to take as given -- e.g., that the Establishment Clause itself is correctly understood as constraining state and local governments, and that "affirming religious premises", as opposed to legislating or punishing, is the kind of state action to which the Clause can be applied --  that I cannot help believing call for additional examination.  (Michael is right, of course, that these issues are, for all practical purposes, settled).  I would also wonder if Michael's proposed answer is able to respond well to what I regard as a serious Religion Clause problem, namely, the possibility that government efforts to enforce its own norms through (for example) anti-discrimination statutes could interfere with the independence and freedom of churches and religious communities.  To put the matter more directly, does the Establishment Clause require an exemption (assuming that the Free Exercise Clause does not, given Smith) for churches, religious schools, etc. from anti-discrimination laws?

Rick

CANADA, SPAIN, NOW MEXICO!

[Yesterday, Canada.  Today, Spain (click here).  What's next?  Mexico?  The indefatigable Andy Borowitz reports:]

One day after the Canadian House of Commons voted to make gay marriages legal across Canada, Mexican President Vicente Fox announced that gay divorces would be legal across Mexico.

In a nationally televised address, President Fox acknowledged that offering gay divorces nationwide in Mexico was a "drastic measure," but added that it was necessary to compete with Canada's bold move.

"Canada stands to reap billions in tourist dollars from couples seeking gay marriages," he said. "But when those marriages go south, we want those tourist dollars to go south, too."

Speaking directly to the gay married population, Mr. Fox said, "When your gay marriage isn't so gay anymore, say 'Ola' to Mexico."

Privately, aides to President Fox said he was "furious" at the Canadians for legalizing gay marriage across the country on Tuesday, since he had been planning for months to offer "quickie" gay marriages across Mexico.

"Vicente was totally pissed at the Canadians when they legalized gay marriages," one aide to Mr. Fox said. "They only did it to make up for the loss of hockey."

At the U.S. Department of Homeland Security, Homeland Security Secretary Michael Chertoff said that Canada's decision to offer gay marriages, coupled with Mexico's decision to offer gay divorces, would cause the U.S. to tighten both borders.

"We don't want to turn the United States of America into some kind of thoroughfare for unhappy gay couples sprinting for Splitsville," Mr. Chertoff said, adding that the Department of Homeland Security would raise the alert level to pink.
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Interesting New Paper by Professor Garnett (No, Not Rick)

[This is lifted from Larry Solum's blog.]

Garnett on Transportation and the Urban Poor
Nicole Stelle Garnett (Notre Dame Law School) has posted The Road from Welfare to Work: Informal Transportation and the Urban Poor (Harvard Journal on Legislation, Vol. 38, No. 73, 2001) on SSRN.  Here is the abstract:

Individuals struggling to move from welfare to work face numerous obstacles. This Article addresses one of those obstacles: lack of transportation. Without reliable transportation, many welfare recipients are unable to find and maintain jobs located out of the reach of traditional forms of public transportation. Professor Garnett argues that lawmakers should remove restrictions on informal van or jitney services, allowing entrepreneurs to provide low-cost transportation to their communities. This reform would not only help people get to work, but it could also provide jobs for low-income people.

I always enjoy Garnett's work.

Posted by Lawrence Solum at 6/29/2005 09:56:00 AM
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Feldman's Solution

Thanks to Mike Perry for linking to Noah Feldman's upcoming NYT Magazine article.  Noah is a friend, and one of the smartest people I know.  I agree with a lot -- but not all -- of what he has to say.

His "church-state solution", in a nutshell, is this:  "[O]ffer greater latitude for religious speech and symbols in public debate, but also impose a stricter ban on state financing of religious institutions and activities."  This solution, he says, "would mean abandoning the political argument that religion has no place in the public sphere while simultaneously insisting that government must go to great lengths to dissociate itself from supporting religious institutions. It would mean acknowledging a substantial difference between allowing religious symbols and speech in public places (so long as there is no public money involved) and spending resources to sustain religious entities like churches, mosques and temples."  As he points out, "this approach goes against the trends of the last several decades, which are for stricter regulation of public religious symbolism and more permissive authorization of government financing and support for religion."  In fact, Noah's proposals will almost certainly prompt more strong (and, unfortunately, hostile) reactions (and probably more from the "left" than from the "right," even though Noah is a person of progressive political commitments).

Again, I agree with many of Noah's arguments, and am drawn to many aspects of his proposed solution.  I hope every MOJ reader will read the full article.  That said, Noah's arguments against school vouchers are, in my view, misguided.  He writes:

If we are to progress toward reconciliation of our church-state problem, it will not be enough for legal secularists to re-evaluate their attitude toward religious symbols and religious discourse. Values evangelicals must also change their ways and give something up -- by reconsidering their position in favor of state support for religious institutions.   The reason they should be prepared to do so is that such state support actually undercuts, rather than promotes, the cohesive national identity that evangelicals have wanted to restore or recreate. When filtered through vouchers distributed by the government and directed by individual choice, state financial aid for religious institutions like schools or charities does not encourage common values; it creates conflict and division.

As I see it, the best reason to oppose vouchers is that they have the potential to water down the identity, and even to threaten the independence, of religious schools and churches.  But this does not appear to be the reason on which Noah relies.  With respect to the just-quoted paragraph:  First, even if it were the case (and it is not) that vouchers "undercut[] . . . cohesive national identity," that would not, in my view, be much of a moral argument against vouchers, if we believe that vouchers are needed to make meaningful our commitments to religious freedom and educational opportunity, which are more important, I would think, than "cohesive national identity."  Second, it just isn't the case -- as the research of my colleagues David Campbell and David Sikkink, among others, has shown -- that private schools (particulary Catholic schools) produce less engaged, less other-regarding citizens than other schools.  Indeed, it appears that the contrary is true.  (To be clear:  the reason I support Catholic schools is not because they produce good Americans; still, the fact -- and it is a fact -- that they do produce good, engaged, other-regarding citizens is a reason, I would think, to support school vouchers).

Noah says, of "private religious schools," that "[i]t is at least as likely that balkanized schools will generate balkanized values as that they will promote a common national project."  Well, "balkanized" is doing a lot of work here.  In any event, Catholic schools are not "balkanized," and do not generate "balkanized" values.  (Some might wish that Catholic schools *did* work harder at producing upsetting and counter-cultural values, but that's a different matter).  That voucher programs do tend to cause political divisions is the result, it seems to me, of their opponents' political and ideological commitments (and economic self-interest) that should not be privileged over the good reasons for supporting such programs.

In any event, Noah's proposal, article, and forthcoming book deserve careful study and consideration.

Rick

UPDATE:  Jack Balkin has a detailed response to Noah's proposal, here.

Noah Feldman's "Church-State Solution"

{This piece, by NYU's Noah Feldman, will appear in the NYT Magazine this Sunday.   To read the whole article, click here.]

New York Times
July 3, 2005 

A Church-State Solution

By NOAH FELDMAN

I. THE EXPERIMENT

For roughly 1,400 years, from the time the Roman Empire became Christian to the American Revolution, the question of church and state in the West always began with a simple assumption: the official religion of the state was the religion of its ruler. Sometimes the king fought the church for control of religious institutions; other times, the church claimed power over the state by asserting religious authority over the sovereign himself. But the central idea, formally enshrined at Westphalia in 1648 by the treaty that ended the wars of religion in Europe, was that each region would have its own religion, namely that of the sovereign. The rulers, meanwhile, manipulated religion to serve their own ends. Writing just before the American Revolution, the British historian Edward Gibbon opined that the people believed, the philosophers doubted and the magistrates exploited. Gibbon's nominal subject was ancient Rome, but his readers understood that he was talking about their world too.

[To read the rest, click here.]
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No, We Shouldn't Care (At Least Not Much)

Tom Berg's post on the 10Cs case I think raises an important question about whether we should care about that case, or, more generally the legal status of government displays of religious symbols. Before I saw Tom's post I was thinking about asking  a similar kind of question:  "Which case is more important: Kelo or the 10Cs?"  I was thinking about that because I felt kinda bad that our fruitful discussion of Kelo seemed to have been dropped immediately as everyone ran off to get in their 2 cents on the 10Cs. I realize the 10Cs was a big Supreme Court case and a politically incendiary topic, and that most of my co-blogistas are professionally focused on the First Amendment Church/State area (which I am not), but in terms of actual importance in the "real world", isn't Kelo far more important -- especially if the dire interpretations of its significance for the integrity of private property emanating from the right are true ("You'll have to pry my Motel 6 out of my cold, dead hands")? But the question is more than one of relative significance.

As Tom suggests, should Catholics or people of faith care at all about the issue in the 10Cs case? I would anwer that we should not, or at least not much. We shouldn't care because the impetus behind the erection of many of these displays, and much of their current defense, comes from the kind of Christian nationalism (both Catholic and evangelical)that I find distinctly un-Catholic and un-Christian, and which I have called wrapping the Cross in the flag. This is a specific complex of values and beliefs that I don't share: that the US is providentially blessed, that we are a "Christian Nation," and that we can reestablish Christendom in America. Note that I believe very strongly that there should be a well-established place for faith in the public square, and in both the rhetoric and actions of religious politicians and decisionmakers, but this kind of symbology does little to advance that agenda, and suggests a type of identification of government with a particular religious symbol that is quite a different goal. It also does little, as Tom suggests, to protect the integrity of religious belief in a secularizing society through more substantive actions such as recognition of vouchers and protecting religiously-affiliated hospitals from government overriding of their ethical norms.

But note my qualication of "not much." Maybe we should care a little. Here's where the "proxy" argument that Tom mentioned comes in. This battle about public symbols is iself a symbolic battle between people who think that religion should be important in the nation's public life and those who do not. In other words, it really is about the whole "religion in the public square" debate, which I've just said is very important. On one level the "proxy" analysis is true -- it expresses the significance that some people on both sides have given  the dispute. I would argue, however, that this argument is a very poor proxy: the symbology of the 10Cs on public buildings is tainted by a narrow and contestable conception of the relationship between Christianity and the state; the stakes are trivial in comparison to those in more substantive disputes about the status of religion and religious actors in the polity; and the dispute distracts attention from the important issues, creating a hill on which those who support a robust conception of religion in the public square should not choose to die.

That being said, and despite my distaste for much of the rhetoric supporting the 10Cs displays, I am very troubled by the highly exclusionist and anti-religious rhetoric used against the displays. I thus can't say "I just don't care" about the issue. It's just "not much."

--Mark

Latest on Abortion Stats and the Safety Net

A few weeks ago Rob and I blogged about preliminary statistics suggesting that the abortion rate had risen during the Bush administration and later numbers, based on data from more states (43 in all), suggesting that the Clinton-era decline had merely slowed rather than reversed.  Now ethics professor (and pro-life liberal) Glen Stassen, who had publicized the original numbers, reviews the latest statistics and concludes "that abortions in those 43 states probably declined slightly [from 2001 on], but at a slower rate than previously - what I call a stall."

Stassen also summarizes evidence that the abortion rate slowed in its decline, and actually increased among poor women and those on Medicaid, at around the time welfare reform kicked in in the mid-1990s.  (I should comment that for the causal analysis to be complete and convincing, it would have to be a lot more extensive than what's in this short article.)  He concludes:

Taking $200 billion per year out of tax income for the wealthy and therefore squeezing down justice programs for children, schools, the CHIP health insurance program that should support children, and jobs programs, and shifting income from the broad consumer base to the wealthy has been bad for mothers and children. We need a motherhood mandate - health insurance, accessible clinics, economic support, parental leave with pay for a child's first year (as most every other democracy except the U.S. has), jobs programs, and support for schools such as my wife's, where teenagers can bring their babies and get their clinic visits without either quitting school or having an abortion - or getting someone else to parent their baby.

Stassen also has choice words for conservative pro-lifers who criticized his initial numbers and publicized the later statistics (which came from the pro-choice Guttmacher Institute):

So here is the irony of advocates who claim to be pro-life cheering data from a pro-choice source to say things are not as bad as I thought. They attack my pro-life effort to push the Bush administration to adopt policies that decrease abortions. It raises the question as to whether their real loyalty is pro-life, or whether their priority is partisan politics.

Tom B.

Should We Care About Religious Symbols Cases?

To me, one of the most interesting questions discussed at the SCOTUS 10 Commandments Sub-Blog is whether these cases about religious symbols really should matter much to anyone.  (Some liberals such as Burt Neuborne suggest relaxing their opposition because lawsuits against these symbols unnecessarily alienate a lot of Americans.)  From the standpoint of Catholic legal theory -- or more broadly, from the standpoint of the vitality of Christian faith or religious faith in civil society -- should we care about whether the government puts up plaques expressing Christian (Jewish-and-Christian, monotheistic) statements?

In one of my SCOTUS blog posts I argued that fighting for official religious symbols "should be at most a low priority for religious believers, and at worst [such fights] tempt them away from more important goals."  We should be less concerned with what the government itself says, and more concerned with whether religious entities -- schools, social services, and so forth -- are able to pursue their missions and contribute to society without government interference or discouragement and with government cooperation when appropriate.  Thus it's far more important to ensure that religious schools can participate in school-choice funding than it is to get a "few scraps" of religion like a prayer at graduation or a plaque in the courthouse.

Fighting for symbols is not just a lower priority, it actually harms the more important goals.  Energy and other resources go into symbols cases instead of the other ones.  Other citizens, even many of good will, become alienated from the orthodox religious sector because they think its main goal is selfish, to get official recognition of its preferred status.  And believers are wrongly led to think that we can helped toward being a "Christian" nation by virtue of symbolic pronouncements -- what the prophet Amos might have criticized as empty "solemn assemblies" -- rather than by "let[ting] justice roll down like waters" (Amos 5:21-23).

Consider also that if we care about religious organizations having a distinctive freedom to pursue their mission in the face of the far-reaching modern state, we have to argue for treating religion specially.   For example, if we want Catholic Charities to be able to resist paying for contraceptives for employees, that means arguing for special accommodation from an otherwise generally applicable law on the basis of religious conscience.  In my experience as a religious-liberty litigator, it is much easier to be able to argue for such distinctive protection for religion if I can point out that, over on the Establishment Clause side of the First Amendment, religious symbols are also specially limited from benefitting from government promotion.  That argument from reciprocity has gut-level appeal to many who would otherwise be hostile to any special concern for religious liberty.  But we lose that argument from reciprocity if we always complain about religious symbols being specially barred from official government displays:  people respond that if religion wants more equal treatment in official pronouncements, it should also be equally subject to all of the laws in a modern welfare state no matter how burdensome the law.

I recognize that there are arguments on the other side, arguments for fighting on behalf of official religious symbols.  As Noah Feldman put it on the SCOTUS blog, people think that official symbols do matter because they really are a proxy for the most fundamental question affecting Christian legal theory, namely, "whether religious values should inform public policy choices or rather should remain a private matter, irrelevant to the state's public decisions and the public reason that justifies it."   

So setting aside the Establishment Clause issues per se, I'd be interested in other's thoughts:  should we care about official religious symbols?

Tom B.

THE NONESTABLISHMENT NORM

In the inaugural issue of the University of St. Thomas Law Journal (Fall 2003, Volume 1, Number 1), I published an article titled What Do the Free Exercise and Nonestablishment Norms Forbid?  Reflections on the Constitutional Law of Religious Freedom.   In that article, I presented and defended what I still believe to be the optimal understanding of the establishment clause.  As it happens, Justice Scalia, in the Ten Commandments Cases this week, presented/defended a very similar understanding.   (So perhaps I am wrong after all!)   I'd love to know whether Bob Araujo, Rick Garnett, or anyone else is unwilling to concur in my judgment--and if so, why.   A PDF version of my article can be downloaded from this site; the relevant pages of the PDF version are 20-38.
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Defining "establishment"

I am so pleased and honored by Fr. Araujo's decision to join us at the Mirror of Justice.  And, I appreciate very much his call for an "answer" -- or something closer to an answer than what we have at present -- to the question, what is an "establishment" of religion for purposes of the First Amendment?  He writes:

My quest, and I suspect that of many others interested in the First Amendment, is for a solid (not “simple”) answer that will be a strong, reliable, and enduring guide for lawyers and judges who tackle First Amendment concerns. I believe that lawyers and judges of today can provide this answer that takes into account the concrete problems that the Founders were trying to address and not the imagined fears of litigants who believe that certain government action constitutes an “establishment” when in fact it does not.

Can we define, in a general, principled way, an "establishment" of religion?  Or, are we stuck with a litany of state actions -- e.g., composing prayers for recitation in government schools, direct funding of religious education, etc. -- that seem clearly enough to be "establishments", even if we cannot say why?

I wonder what Fr. Araujo would think if we were to embrace -- or, at least, start our inquiry with -- the discussion provided by Justice Thomas in last year's Pledge of Allegiance case, Elk Grove v. Newdow:

The traditional “establishments of religion” to which the Establishment Clause is addressed necessarily involve actual legal coercion: “The coercion that was a hallmark of historical estab­lishments of religion was coercion of religious ortho­doxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. L. Levy, The Establishment Clause 4 (1986). . . .  Even if “establishment” had a broader definition, one that included support for religion generally through taxation, the element of legal coercion (by the State) would still be present. . . .

It is also conceivable that a government could “estab­lish” a religion by imbuing it with governmental authority, . . . or by “delegat[ing] its civic authority to a group chosen according to a religious criterion[.]” . . .  A religious organization that carries some measure of the authority of the State begins to look like a traditional “religious establishment,” at least when that authority can be used coercively. . . .

It is difficult to see how government practices that have nothing to do with creating or maintaining the sort of coercive state establishment described above implicate the possible liberty interest of being free from coercive state establishments.

Rick

What is "establishment"?

I have had some opportunity to reflect on Tom’s and Rick’s postings in the Scotus forum and have found their respective contributions thoughtful. I have had the additional opportunity to read and reflect on the Court's opinions. As a former teacher of Constitutional Law, I have often been troubled by the Supreme Court jurisprudence on the establishment component of the First Amendment. I am one of those individuals who thinks that First Amendment cases simultaneously raise establishment and free exercise issues. In the context of Monday’s decisions on the establishment question, free exercise issues gestate. But that is not the topic here today. The subject is this: what is “establishment.” How should it be defined? I am not aware of any Supreme Court definition of this important term that has general application. Historically, the Court has addressed illustrations of “establishment” that present concerns about government neutrality or the purpose of the government activity that is under scrutiny. In the context of the Kentucky case, an important paragraph that begins to address but fails to answer the question about the meaning of “establishment” appears on page 27 of the slip opinion:

The importance of neutrality as an interpretive guide is no less true now than it was when the Court broached the principle in Everson v. Board of Ed. of Ewing, 330 U.S.1(1947), and a word needs to be said about the different view taken in today’s dissent. We all agree, of course, on the need for some interpretative help. The First Amendment contains no textual definition of “establishment,” and the term is certainly not self-defining. No one contends that the prohibition of establishment stops at a designation of a national (or with Fourteenth Amendment incorporation, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), a state) church, but nothing in the text says just how much more it covers. There is no simple answer, for more than one reason.

My question concerns the search for the answer that is overdue. I am not pursuing a “simple answer,” but I am searching for a solid answer about the meaning of the crucial term “establishment.” Since Establishment cases began to surface in the late 1940s, the meaning of this vital term has haunted Supreme Court decisions but eluded definition presenting a general rule for broad, even universal, application. If human beings trained in a particular legal tradition could draft the term “establishment” (knowing that some compromise may have been involved in the drafting exercise that produced the final text), why is its meaning so elusive that it is impossible for human beings trained in the same system to assert that there is “no simple answer”? Is this a pretext for saying that there is no answer: simple, complex, or otherwise?

I think there can be an answer, and there should be one. I have been accused of being a perfectionist before, but it is not perfection I seek. My quest, and I suspect that of many others interested in the First Amendment, is for a solid (not “simple”) answer that will be a strong, reliable, and enduring guide for lawyers and judges who tackle First Amendment concerns. I believe that lawyers and judges of today can provide this answer that takes into account the concrete problems that the Founders were trying to address and not the imagined fears of litigants who believe that certain government action constitutes an “establishment” when in fact it does not. It would probably mean that some in the national community would not be pleased with such a “solid” answer, but I hasten to add that the two Establishment Clause decisions issued this week have brought little pleasure to anyone. But I digress. The law is not about pleasure. It is about right reason and its objective application. In the community of MOJ readers, I will suggest that the kind of reason of which I speak is a gift of God. Perhaps one day litigants and the courts will realize that the time has come to define what is constitutive of “establishment.” Then we will not have to rely on strained explanations distinguishing why the paying of Congressional and military chaplains from public funds is not an “establishment” but permitting public school prayer is.   RJA sj

Forgiveness: Pope Benedict's legacy?

My friend and Notre Dame colleague Dan Philpott has this essay, "Pope's Greatest Legacy Could Be Forgiveness", in the South Bend Tribune.  He writes:

What is now needed is a social ethic of forgiveness, one that explains when, how and under what circumstances nations ought to practice the principle. Were Benedict XVI to take up this challenge, he would be forging an important development in the long tradition of Catholic social thought, a tradition that offers a rich legacy of doctrines about the justice of war -- ones now ensconced in international law and U.S. military doctrine -- but that provides little guidance for societies like Iraq or Bosnia, or Rwanda or Northern Ireland, which have already been devastated by war or dictatorial rule and are now seeking to rebuild.

Forgiveness in politics is rare, critics will point out, and for good reason: It is utopian. But one day before Benedict XVI was elected, The New York Times carried the following headline: "Atrocity victims in Uganda choose to forgive." In the mid-1990s, South African Archbishop Desmond Tutu proposed that wounded countries have "no future without forgiveness" and encouraged it through his country's Truth and Reconciliation Commission. Half a decade earlier in Chile, President Patricio Aylwin called for national repentance for the torture and killing of thousands during the dictatorship of Augusto Pinochet. Militants and civilians, politicians and prelates have also granted and received forgiveness in El Salvador, East Germany, Northern Ireland, Guatemala and elsewhere.

Most of these voices advocate forgiveness as one of several practices in a larger process of reconciliation, complementary to the public telling of the truth about past injustices, reparations, apologies and, most of all, accountability for offenders. These are the ingredients of an ethic of forgiveness. Weaving them together and passing the product along to the world is a job for which a global moral leader with an impressive intellect -- like the new pope -- is uniquely suited. In an era when war is fueled anew by the deepest sorts of identities -- religious, ethnic, national, and civilizational -- forgiveness may well prove Benedict's greatest legacy.

Rick

The Washington Post on the 10C's and Division

Here is today's Washington Post editorial, endorsing Justice Breyer's opinion in the Texas Ten Commandments case.   As I mentioned yesterday, Justice Breyer puts the "divisiveness" of religious expression at the heart of the inquiry into its constitutional validity.  The editors write:

In striking down the Kentucky counties' displays while allowing Texas's, the court sends a strong message that new displays created specifically to promote religion will get the most exacting of judicial scrutiny. But it also suggests that it will grandfather in longstanding monuments whose uprooting, as Justice Breyer put it, would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid." The court's approach may not be philosophically satisfying, but in practical terms, it isn't a bad way to evaluate public religious monuments.

My view, again, is that this approach actually is a "bad way to evaluate public religious monuments."  By the way, to say this is not to endorse the idea of Ten Commandments displays and similar monuments.  I'm inclined to agree with Tom Berg that such displays, and the surrounding litigation, distract us from the real religious-freedom challenges.

Rick

Inciting Religious Hatred

The Paleojudaica blog has an interesting post about a proposed law in the United Kingdom that would outlaw "inciting religious hatred."  Apparently, “religious hatred” is defined as “hatred against a group of people defined by their religious beliefs or lack of religious belief”.  A government website also reports that:

The proposed and existing offences both carry a high threshold in order to protect freedom of speech. Words, behaviour or material used must be threatening, abusive or insulting and must either be intended to or likely to stir up hatred. The hatred must be aimed at people who are members of that group, not ideologies. Hatred is a strong term; which goes beyond ridicule, prejudice, dislike, contempt, anger or offence. A further safeguard in the legislation is that a person who does not intend to stir up hatred is not guilty of an offence if they did not know that their words, behaviour, written material, recording or programmes were threatening, abusive or insulting. Furthermore the offences do not apply to anything that takes place in one’s own home.

Like the post's author, I'm enough of a free-speech near-absolutist to be inclined -- almost reflexively -- to oppose laws like the proposed one.  Still, I could be wrong.  What do others think?  What should we think?

Rick 

95 (More) Theses

Brian Leiter has posted "95 Theses on the Religious Right," authored by Peter Ludlow, a philosopher at the University of Michigan.  Here are a few:

1. Our Lord and Master Jesus Christ, when He said "love thy neighbor", willed that believers should show *compassion* toward others.

2. This word cannot be understood to mean mere lip service ("I love them, but I hate their sin"), but genuine concern for the welfare of others.

3. Yet the Religious Right has forsaken compassion for a doctrine of institutionalized hatred and violence.

4. Specifically, the Religious Right has taken the Word of God and wrapped it in the flag of Right Wing Politics, replacing God's message of redemption for the entire world with a narrow message endorsing right wing American politics.

I imagine that few Christians -- right or left -- would disagree with the content of theses like (1) and (2) (or the the many others on the list like them).  Nor would many on the "right" disagree with the idea that it would be bad if the charges made in theses like (3) and (4) (or the many others on the list them) were true.  The problem, for me anyway, is that thesis (3) --  "the Religious Right has forsaken compassion for a doctrine of institutionalized hatred and violence" -- is not true, unless, of course, one defines "the Religious Right" as "those who have forsaken compassion for a doctrine of institutionalized hatred and violence."  Certainly, there are many such people.  But whether and to what extent the class of those who have "forsaken compassion for . . . hatred and violence" overlaps with the category of citizens usually identified as "the Religious Right" are questions about which I imagine Ludlow and I would disagree.  In any event, the list is worth checking out.

Rick

More 10 Cs Blogging

I'm with Rick among those blogging on the 10 Commandments cases at the SCOTUS Blog.  My first post is here (UPDATE: another one here).

Tom B.

"Divisiveness"

As I mentioned in an earlier post, I'm blogging -- with a dozen or so other law-and-religion folks -- about the Ten Commandments cases for the next few days over at SCOTUS Blog.  I would really appreciate my fellow MOJ-ers' reactions to the decisions, though.  Although the results were entirely expected, and -- in a way -- the cases break little new ground, there are so many things "going on" in the various decisions that are interesting and provocative.  For me, the most striking (for now, anyway) thing to come out of the decisions is Justice Breyer's putting at the center of the Establishment Clause inquiry his predictions and observations about "political divisiveness" and "social conflict."  In his view, it appears that avoiding social dissension is more than a policy desideratum or a prudent aspiration. It is, somehow, a fundamental, judicially enforceable religion clause "principle".  This view takes us back to then-Chief Justice Warren Burger's statement, in the landmark case of Lemon v. Kurtzman (1971), that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect."  Burger foresaw "considerable political activity" on the part of "partisans of parochial schools," and would have none of it.  Such activity, he feared, "would tend to confuse and obscure other issues of great urgency."

As I've said before, it is not clear why our political, cultural, and other "divisions" should be relevant to the legal question of whether a particular policy is constitutionally permissible.  In fact, there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from “confusion” or privileges judges’ sense of political "urgency."  Even Chief Justice Burger conceded in Lemon that "political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government."  Judicial squeamishness toward messy politics is hardly a reliable constitutional benchmark.

Eugene Volokh's question, I think, is an important one:

What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions? My sense is that it's the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I've seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.

Isn't there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?

And, there seems to be a lot to Sandy Levinson's statement that "we have a Supreme Court (and, of course, they are not unique in their perceptions) that is basically terrified of politics and the potential for genuine conflict that a serious politics can generate."

Thoughts?

Rick

Decalogue Decisions

While the texts of the two Ten Commandments decisions are not yet available on line, I have read a number of news reports on the internet media services. From one perspective, it seems (and I emphasize this point) that the majorities in both cases endorsed an analysis reflecting what I call “the formulaic calculus of the candy canes” from the Rhode Island crèche case. Whilst the Court still does not offer some proportion regarding the legal percentage of religious items in a display, it would once again appear that if the secular outnumbers the religious items, the display passes Constitutional scrutiny. In the case from Texas, the ratio is 16 or 17 non-religious items to the one religious item. I have not been able to determine what else graced the halls of the courthouse in the Kentucky case. In this context, I find what seems to be at the core of Justice Scalia’s concern to have merit: how does such a ruling serve the rule of law and the development of a principle that can be uniformly applied? The point is highlighted by the fact that the Court appears to indicate that the legality versus the illegality of the display must be ascertained on a case-by-case basis. Like other MOJ participants, I look forward to reading the opinions when they become available. I am certain the subsequent commentary will be enriching.  RJA sj

Ten Commandments blogging

As everyone knows by now, the Supreme Court voted 5-4 against a particular Ten Commandments display in a Kentucky courthouse, and 5-4 (a different majority) in favor of another Ten Commandments display on the lawn of the Texas state capitol.  The opinions are available, as is lots of good discussion, at SCOTUS Blog, where a number of First Amendment scholars (including me) are participating in a conversation about the case.  Here is my first post.  Check it out. 

Rick

Becker-Posner on Kelo

Given the to-and-fro on this blog about the recent takings case, MOJ readers may be interested in what Nobel Laureate Gary Becker and law-and-economics guru Richard Posner have to say, on their blog, about the power of eminent domain:  here and here.
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mp

Read the TLS!

Okay, last post for the day (it's too hot for the pool, and the Yankees-Mets aren't on til 8:20, so I blog). In my last post I quoted extensively from a review In the (London) Times Literary Supplement. I don't know how many of our readers read it regularly, but I've beem subscribing for several years and find it terrific. I'm not particularly an Anglophile, but it is  a change of pace that is definitely worth its pricey subscription rate. Of most interest to MOJ is its regular and very sophisticated reviews of new books on religion and theology -- much better than anything I've seen in similar pubs in the US. They review more books and different books in those fields, and they are often reviewed by people within religious traditions, rather than by people who don't quite know what to make of this slightly distasteful religious stuff. For example, they published a review several months ago of a very interesting book fr Univ of Notre Dame Press by Christopher Insole, "The Politics of Frailty: a Theological Defense of Political Liberalism," which has not yet received any attention in the US non-specialty pubs (though I'm working on a review for Commonweal). The TLS also just published (6.10.05) a devastating critique of the DaVinci Code -- not a new topic, but done with an extraordinary thoroughness by the Professor (Emeritus) of Crusading History at the Univ. of Nottingham (now that's an academic title !). Surprisingly, the TLS is both more academic and more fun to read than my other favorites, the NYRB and the New Republic, and light years beyond the increasingly puffy and lower-middlebrow NYTimes Book Review. It also has two odd, but very interesting regular essayists, Hugo Williams and Michael Greenberg, and the reviewing style also has a kind of polite savagery that is far more entertaining than the painfully earnest critiques found in American reviews. The Letters also have an edge and wit that make the snarkiness of the American blogosphere look like the sophomoric heavy-breathing that it usually is. So,