May 16, 2012
Bloating the Establishment Clause
The following style of argument has on occasion found favor with courts. The state has an interest in appearing not to violate the Establishment Clause, even if it actually is not violating the Establishment Clause. And it appears to violate the Establishment Clause when it accommodates a religious group or organization -- whether on equal terms with non-religious groups or not. For example, in the Second Circuit's Bronx Household of Faith case (whose fate is still working itself out in the Southern District of New York), the Court said this: "In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause." Not only endorsement, but a "strong basis" for "concern" that there is endorsement -- that is, the appearance of an endorsement -- is constitutionally relevant. I have not been able to locate the phrase, "appearance of endorsement" in Justice O'Connor's statements of her test, though I did find that precise language in Justice Souter's concurrence in Capitol Square Review and Advisory Bd. v. Pinette.
I think the argument is utterly bogus. But I feel that way about many Establishment Clause standards and arguments. What makes this one particularly -- uniquely -- wrongheaded is its backhanded puffing up of the reach of the Establishment Clause without actually bothering so to rule.
Who is assessing appearances? From what vantage point? The same person who is assessing reality? May not appearances be deceiving? If something appears to violate the Establishment Clause, does that imply that it actually does not violate the Establishment Clause? And if something does not violate the Establishment Clause, why in Heaven's name should we care at all -- from a constitutional point of view, as opposed to a political one -- that it appears to do so? Or is the appearance of violating the Establishment Clause a suggestion that something may violate the Establishment Clause, but we are unprepared to say so? When would we be prepared to say so? When it actually does violate the Establishment Clause? But shouldn't we only say so then?
But ridiculous as all of that is, it's not really what I find supremely irritating about the argument from appearances. What really rubs me wrong is that by using the language of appearances or reasonable "concern," courts are able to give constitutional weight to practices that have nothing to do with the Establishment Clause. They can tacitly expand the reach of the Establishment Clause without actually so ruling. They can say, for example: "Accommodating a religious group may or may not be constitutional under the Establishment Clause; we're not saying. But whether or not such an accommodation is constitutional, the state's failure to grant an accommodation vindicates a non-establishment value -- to wit: avoiding the appearance of an establishment." Instead of saying honestly that the Establishment Clause says absolutely nothing about the refusal to accommodate X, that refusal is itself constitutionalized through the back door of the Establishment Clause. You may be too weak politically to get yourself an accommodation -- you may not know the right people or your claims just may not have traction in the political climate of the day -- but it adds needless insult to injury to be told by a court that the political rejection of your accommodation actually has a basis in the Constitution. It doesn't. And saying that it does bloats the Establishment Clause; it expands its waistline with the empty calories of what "appears" to be unconstitutional but really isn't. That is no way to interpret the Constitution.
There is a final reason that I think the appearances argument is obnoxious: it rewards the government that declines to accommodate religious objectors by sanctioning its action as a constitutional matter, and in so doing it insidiously suggests that it is part of our constitutional tradition to be intolerant of religious difference. We here at MOJ see the holding of Employment Division v. Smith in different ways: some think it wise, while others do not. But most people agree that Smith was not intended to discourage legislatures from accommodating religious objectors. It was intended to place primary responsibility for such accommodations in legislative hands -- to de-constitutionalize the issue of exemptions from neutral and generally applicable laws.
The Establishment Clause appearances argument alters that framework. It re-constitutionalizes the exemption issue. Failures to accommodate are no longer purely political matters. They are supported by constitutional reasons. In combination with Smith, the EC argument from appearances suggests that it's a very good thing, constitutionally, when legislatures are intolerant of religious difference, because accommodating people for religious reasons gives the appearance of violating the Constitution, even if -- in reality -- it does nothing of the kind.
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Very well said, Marc.
Posted by: Rick Garnett | May 16, 2012 8:12:22 AM
You say that Smith was "intended to place primary responsibility for [deciding when to grant] accommodations in legislative hands". But if I understand your complaint correctly, you seem to think that states must grant all accommodations requested unless a particular accommodation would actually violate the Establishment clause. This would mean that a state decision to draw the accommodations line anywhere short of the line between constitutional and unconstitutional would be unacceptable. So aren't you pushing for re-constitutionalizing the exemptions issue? Or am I misunderstanding your claim?
Posted by: WmBrennan | May 16, 2012 10:33:09 AM
Hi, William. No, I don't think that government "must grant all accommodations requested unless a particular accommodation would actually violate the Establishment Clause." I think it is good policy as a general matter to be inclined to grant accommodations where practicable. I happen also to think that there are some sorts of accommodations which ought to be constitutionally required. But I do not believe that states "must" grant all requested accommodations short of violating the Establishment Clause. There are many judgments and values that a government must balance in deciding whether or not to accommodate someone.
For purposes of this post, I am assuming that we are living in a post-Smith world, and that no accommodations are constitutionally compelled. That is not my own approach to accommodation, but I can understand the reasons that some folks think it is the best one.
Assuming we are living in such a world, a state's refusal to accommodate a religious claimant is in general a matter of politics. With only certain exceptions, a refusal to accommodate is not a constitutional matter. To the extent that I can understand and even sympathize with that view, that understanding and sympathy depends upon the willingness of legislatures generally to look favorably upon accommodation where possible -- to think of accommodation and tolerance of religious difference as a good thing.
But when a court says that the refusal to accommodate is not merely a political judgment, but actually vindicates constitutional values, that's where I get off the bus. If you want to tell me that Smith de-constitutionalizes accommodation, and that this is a good thing, I won't like it, but I'll accept the bona fides of the argument, until such time as you then tell me that refusing to accommodate people actually is a constitutional mandate (or gives off the appearance of vindicating the constitutional mandate of non-establishment).
Posted by: Marc DeGirolami | May 16, 2012 10:49:00 AM
I'm not sure the use of "refusal to accommodate" is accurate in the New York school case. Treating religious groups the same way that you treat other non-religious groups (e.g., by allowing them to hold meetings and services in the school when it is available) is not an "accommodation" of the religious group in the same way that allowing a jewish employee to have Saturday's off is an accommodation of the employee. What the court in the NY case seems to be doing is constitutionalizing discrimination against religious groups (treating them differently from similarly situated non-religious groups) in the name of preserving the appearance of non-establishment. I agree that such a trend is very problematic. However, do you think the Locke v. Davey decision helps "legitimize" this approach? In that case, SCOTUS allowed the concern for non-establishment to prevent public scholarship funds from being used to study religion when it was otherwise available for any other course of study.
Posted by: MikeD | May 16, 2012 4:47:55 PM
Mike D., very good comment. On the accommodation issue, you are right, and I probably should not use the word "accommodation" in a context like Bronx Household. I do think that the reach of the Establishment Clause appearances argument covers both traditional accommodation claims and claims of equal treatment.
Also a nice point on Locke v. Davey, and that may be right. I want to be clear that all that is needed to accept my claim in this post is the belief that the Establishment Clause has nothing to say about a case like Locke v. Davey. One can conclude that the state should or should not be able to "exclude" religion (as Nelson Tebbe has called it in an interesting piece). But it seems to me a different proposition entirely to say that there is an Establishment Clause value being vindicated when the state does so. There is some language in CJ Rehnquist's majority opinion in Locke which suggests that the state's interest in disestablishment justifies unequal treatment of religion -- the Court talks about the state's "historic and substantial" interest in not using tax proceeds to fund religious ministries of various kinds. But for me this is somewhat different, in that the use of tax payer money to fund religion really is a core and historic function of the Establishment Clause, while preventing religious institutions from using public buildings was not (see Michael McConnell's Wm. & Mary piece on establishment). Nevertheless, I think you are right to suggest that this style of argument is of a piece with what I am criticizing in this post.
Posted by: Marc DeGirolami | May 17, 2012 8:39:23 AM
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