Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, June 29, 2005

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


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