Thursday, June 30, 2005
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