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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