http://fish.blogs.nytimes.com/?p=38
March 18, 2007, 8:06 pm
My last column told the story of the diminishing scope of the establishment clause of the Constitution. Once understood as prohibiting state actions that endorse, benefit or advance religion, the clause has in recent decades been re-read in ways that permit, among other things, taxpayer financing of evangelical student newspapers and the construction of buildings at sectarian (mostly Christian) schools. This result has been accomplished by shifting the inquiry from the traditional establishment clause question – does this amount to government funding of religious activities? – to a free expression clause question – would denying the religious institution this benefit or subsidy be an unfair instance of viewpoint discrimination? By substituting the requirement of fairness for an investigation of a law’s effects, the courts have moved dramatically away from James Madison’s insistence that not even three pence of public funds should be spent for religious purposes and have rendered the establishment clause nugatory.
Some of those who commented on the column attributed the pattern I described to the nefarious forces of organized religion or to the machinations of the Bush administration (always the default villain for Times readers), but a deeper explanation might be found in a religion-clause jurisprudence so fissured that one might even call it schizophrenic. The division is between two views of the assumptions that should be kept in mind when an establishment clause case or a free exercise case is being adjudicated. One view stresses history and cultural traditions; the other embraces the iron logic of principle.
The touchstone statement for those who urge us to respect history is Justice William Douglas’s declaration in Zorach v. Clauson (1952) that “We are a religious people whose institutions presuppose a Supreme Being.” The key word is “presuppose.” It says that the assumption of a supreme being and of a citizenry that believes in him (or her) hangs over this country’s institutions, including its legal institutions. It is a given, and any consideration of a benefit that state action confers on religion should occur within it. One should not, therefore, regard religion clause prohibitions as categorical and without exception. Rather, as Justice Sandra Day O’Connor asserted in County of Allegheny v. American Civil Liberties Union (1989), “the meaning of the Clause is to be determined by reference to historical practices and understandings,” and, she noted, “Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage.”
Religion clause purists respond to this argument by pointing out that what is accepted may not be right and by insisting that principle, not history, should be the guide. Thus Justice William Brennan contends (in Marsh v. Chambers, 1983) that the practice of “official invocational prayer” in many state legislatures, “is not saved … by its history,” for it is simply “wrong.” And in the same vein, Justice Harry Blackmun (again in County of Allegheny v. American Civil Liberties Union) maintains that the “bedrock Establishment Clause principle” must be affirmed “regardless of history.”
The opposition of principle to history is complicated, however, by the fact that both sides claim to find support for their positions in history – the history of the framers’ intentions. Those who argue for the primacy of the “accepted habits of our people” (Justice Stanley Reed in McCollum v. Board of Education, 1948) will say that the framers intended only to prevent government from favoring one sect over the others; don’t establish a particular religion was their directive. Here, for example, is William Rehnquist telling us (in Wallace v. Jaffree, 1985), “that the framers intended the Establishment Clause to prohibit the designation of any church as a ‘national’ one.” It was not their intention to “require government neutrality between religion and irreligion.”
Yes it was, says Justice David Souter who argued (in Capitol Square Review v. Pinette, 1995), that when Ohio permitted a cross and a menorah to be erected on a plaza adjacent to the Statehouse, it sent the message that “The State of Ohio favors religion over irreligion,” and “this message is incompatible with the principles embodied by our Establishment Clause.”
Defenders of the more flexible view of the framers’ intention will point out that “In the very week that Congress approved the Establishment Clause … it enacted legislation providing for paid chaplains for the House and Senate” (Justice Warren Burger in Lynch v. Donnelly, 1984). The response, implicit in the reasoning of the strict constructionists, is that it was a principle the framers were announcing, and although they may have not fully understood the scope of their principle, we do. So it’s a standoff between those who believe that the framers historically intended that we pay attention to history and those who believe that the framers historically intended that we should not.
Notice that the cases I have cited in these two columns span more than 50 years and 10 administrations. In that time, the cast of characters on the Supreme Court has constantly changed, and the line dividing the opposing positions (which persist unchanged) does not correlate with differences of religion, politics, interpretive philosophy, seniority or judicial temperament. The arguments that emerged full-blown in 1947 are the arguments that are still being run today. There is no progress to be discerned; no clarity has emerged; no consistency has been achieved. Almost all of the decisions, in whatever directions they tip, are 5-to-4. It’s a mess, and more than once the justices themselves have commented that the jurisprudence in which they are engaged is incoherent and chaotic.
If there is a pattern at all, it is most assuredly not linear. Rather it is a pendulum, or a roller coaster or, at times, a kaleidoscopic fun house, as we are told that a crèche set up in a public sphere with state funds is not an establishment of religion (Lynch v. Donnelly), while the delivery of a prayer carefully denuded of any sectarian content (or any content at all) at a middle school graduation – the very middle school from which I graduated in some other century – is. (Lee v. Weisman, 1992).
That is why I said at the outset that blaming either evangelical ideologues or the administration they may be said to own for this or that decision is an oversimplification. The fault, dear readers, lies not in the players – on or off the Court – but in the enterprise, an enterprise so fundamentally divided against itself, that it will continually reproduce its built-in ambiguities and contradictions no matter what issues are brought to its bar or whose hands are, at the moment, on the wheel.
March 11, 2007, 8:13 pm
The question in my title sounds odd, even silly, because as everyone knows, the establishment clause is a part of the Constitution. It is the first clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” At this point I am tempted to begin a sentence with “that is” and follow it with a gloss on the clause. But just what these apparently simple words mean has been debated by the courts with increasing vociferousness and little resolution since Everson v. Board of Education, often referred to as the first modern establishment clause case, was decided in February of 1947.
The issue in Everson was whether the use of public funds to transport students to and from parochial schools was an establishment of religion because religion’s interests would be advanced by the expenditure of state monies. Now, 60 years later on March 6th, the Supreme Court of California has considered and ruled on the issue of whether a municipal agency (the California Statewide Communities Development Authority), may provide tax-exempt bonds to avowedly sectarian schools for the purpose of constructing cafeterias, athletic facilities and other campus buildings. The facts are different – in 2007 it is buildings rather than buses that pose the problem – but the basic question is the same: When can it be said that a government action amounts to an establishing of religion?
Everyone agrees that a good place to look
for an answer to this question is James Madison’s “Memorial
and Remonstrance Against Religious Assessments” (1785), in
which one finds this oft-cited rhetorical question: “Who does
not see,” Madison asks, “that the same authority which
can force a citizen to contribute three pence only of his property
for the support of any one establishment, may force him to conform to
any other establishment in all cases whatsoever?” (Madison was
writing against a proposed order by the General Assembly of Virginia
to provide funds to “Teachers of the Christian
Religion.”)
After quoting and discussing “Memorial
and Remonstrance,” Justice Hugo Black, who delivered the
majority opinion in Everson, declared roundly that if the
establishment clause means anything, it means “at least”
that “No tax in any amount, large or small, can be levied to
support any religious activities.” When Black added to this
statement an endorsement of Thomas Jefferson’s metaphor (not in
the Constitution, but a part of constitutional tradition) of “a
wall of separation between church and State,” the case would
seem to have been closed.
And indeed it was, but not in the direction one might have anticipated, for Black concluded that the state (in this case New Jersey) did not violate the establishment clause when it reimbursed parents for the expense of transporting their children to and from parochial schools. How was this reversal managed and justified? By changing the subject and varying the question. Instead of asking, does the state’s reimbursement program have the effect of supporting a religious institution (the answer to that question surely would be yes), Black asked, what did the legislature have in mind? And he found that it had in mind nothing more than to “provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” The First Amendment, he added, requires only that “the state be neutral in its relations with … religious believers; it does not require the state to be their adversary.”
The reasoning here was at best disingenuous; it more than implied that if the state were not to reimburse parents of parochial-school students it would be discriminating against them – denying them a general benefit – on the basis of their religion. But the discrimination would not be against religious believers, but against religious institutions as the possible recipients of public funds, and that discrimination is what the establishment clause enjoins, at least as James Madison would read it. The point was made by Justice Robert Jackson in his dissent when he insisted on “a difference which the Constitution sets up between religion and almost every other subject matter of legislation.”
Those who oppose a strict application of the establishment clause often argue that religion shouldn’t be “singled out” for hostile attention. But the special status of religion is the reason for the establishment clause (if religion was to be treated like everything else, there would be no establishment clause), and that special status, Jackson observed, is both positive and negative: “it was intended not only to keep the state’s hand out of religion, but to keep religion’s hands off the state,” an intention that would be flouted if religion’s hands were allowed to dip into the state’s pocket.
This plain fact is occluded by the trick of running two inquiries at the same time and assuming (or pretending) that they are the same. One inquiry (proper to the establishment clause) asks, is the state expending public monies in a way that advances religion? The second inquiry (more philosophical then juridical) asks, is the state being fair and even-handed to religion? The first inquiry is responsive to the establishment clause’s nervousness about religion, and alert, in the spirit of Madison, to the slightest (“three pence only”) breach of the wall of separation. The other inquiry is responsive to the demand of impartiality, and its rule is, if the public schools receive aid from the state, the parochial schools should too. As Justice Wiley Rutledge noted in his dissent, by generalizing away from establishment concerns and moving to “larger” concepts like “promoting the general cause of education and the welfare of the individual,” the rule of impartiality “ignores the religious factor.” It does more than that, for by rejecting the establishment clause’s suspicion of any intersection of religious activity and state action, the rule of impartiality comes very close to discarding the establishment clause altogether.
This was pretty much the result in a later case, Rosenberger v. Rector (1995). The case turned on the refusal of the University of Virginia to authorize payment (from student funds) for the printing of an evangelical student newspaper, Wide Awake, on the grounds that it was engaged in religious rather than educational activity, and therefore fell afoul of the establishment clause. Justice Anthony Kennedy, writing for the majority, ruled against the university’s position on the reasoning that its action amounted to “viewpoint discrimination.” That is, by setting up a student activities fund with the purpose of encouraging the presentation of diverse views, the university had established a forum open to all forms of expression, and now it was trying to exclude one kind of expression, the expression of the “Christian viewpoint.”
This argument works by moving the dispute out of the establishment clause context and into the context of the free expression clause. The free expression clause depends on a distinction between speech and action: it says that while action can be regulated (that, after all, is what government and laws do), expression, no matter what its content, must be freely allowed. (It’s the fairness or even-handed requirement again.) The establishment clause, in contrast, is uninterested in expression except when it turns into, or is a component of, an action of the kind it polices — state action that has the effect of furthering the interests of religion. This difference is marked by the university’s characterization of Wide Awake as “religious activity” rather than as religious expression. What triggered an establishment clause concern is what Justice David Souter, writing in dissent, called the “hortatory” nature of the newspaper’s appeal. This was not, he said, “the discourse of the scholar’s study,” but of the evangelist’s mission station and the pulpit. It was “nothing other than the preaching of the word” and a “straightforward exhortation to enter into a relationship with God.”
It was “obviously crucial,” Souter contended, to distinguish “between works characterized by the evangelism of Wide Awake” and “simply descriptive writing informing a reader about the position of a given religion.” Wide Awake, despite the fact that it takes the form of words, was not speech; it was action – a “call” to religious behavior – and because it was an action sponsored by state funds, it fell into the category of things regulated by the establishment clause. If you take this distinction away, the establishment clause no longer has an area in which it can be applied, and this is exactly what happened when Justice Kennedy made the case turn on the question of viewpoint discrimination.
Five years later Souter was singing the same song, and again he was on the losing side. In Mitchell v. Helms (2000), the question was, can funds distributed by the federal government to the states for dispersion to public and private schools be used to aid religious schools? Writing for the majority, Justice Clarence Thomas restated the question as one that asks “whether any religious indoctrination that occurs in those schools could be reasonably attributed to governmental action?” In short, is government doing the indoctrinating? No, said Thomas, because the government provided funds in a neutral manner “to a broad range of groups and persons without regard to their religion.” Any indoctrinating, then, was being done by the persons and groups that used the funds, not by the government.
I call this the “money laundering” strategy for getting around the establishment clause (it is often used by those in favor of school vouchers), and Souter was predictably indignant. This “conception of neutrality” as a sufficient prophylactic against an establishment clause violation “would, if adopted by the Court, eliminate inquiry into the law’s effects” and would mark, Souter predicted, “the end of the principle of no aid to the schools’ religious mission.” This has been in the process of ending for a long time.
The day after Everson came down, a Washington Post editorial warned that if citizens can be taxed to pay for buses sent to and from parochial schools, in time “they can be taxed to pay the salaries of church teachers and the cost of buildings for religious educational purposes.” The California Supreme Court case decided last week demonstrates just how prophetic this warning was. The case, as I noted earlier, is about using tax-free bonds to finance buildings at Christian schools. The relevant article of the California Constitution says that neither the Legislature nor any municipality “shall ever make an appropriation, or pay for any public fund whatever … in aid of any religious sect, church, creed or sectarian purpose, or help to support or sustain any school, college, university or other institution controlled by any religious creed, church, or sectarian denomination.” (It’s the establishment clause writ large.) Immediately after citing this article, Justice Joyce Kennard, writing for the majority, made the Everson move and declared that because funds for the building projects “will not come from any government entity but from private-sector purchasers of the bonds,” the state cannot be said to be directly aiding religion. The program is “simply a mechanism by which the government extends available tax to private individuals” who may then turn around and confer a benefit on religious institutions. But that’s their choice, not the government’s.
It’s the money laundering argument once again, and Justice Ming Chin, in dissent, gamely tried to counter it by asserting that the “key question is not whether the benefit … is direct or incidental,” but whether it results in the support of sectarian schools. Justice Chin was saying, let’s remember that, after all, this is an establishment clause case, and what we’re supposed to be worried about is the diversion of public funds for religious purposes. But it’s too late in the day for that, and if this case goes up to the Supreme Court, I doubt the result will be any different. The establishment clause may still be on the books, but it is honored more in the breach than in the observance.