The interpretative bases of the Religion Clauses, never very stable to begin with, seems to have up ended over the course of the last half-decade. I might venture to say that (with a few notable exceptions), except perhaps for their holdings, and the general principles the underlie them, cases decided much before 2000 will be of increasingly little value in helping understand what the Supreme Court is doing when it is confronted by a Free Exercise of Establishment Clause Case. The three prong Lemon test (Lemon v. Kurtzman, 403 U.S. 602 (1971))—secular purpose, secular effects and no substantial entanglement, has been substantially modified into a very different standard or superceded. This makes sense as the court shifts away from a jurisprudence (like Lemon) deliberately designed to make it difficult for the state to accommodate religion (a point made by Justice Harlan in Sherbert (Sherbert v. Verner, 374 U.S. 398 (1963))) to one in which accommodation is easier to justify. It is the limits and contours that that more liberal justification that continues to embroil the court in jurisprudential battles.
What follows is a brief suggestion of the way the Supreme Court is rewriting the analytical bases for approaching interpretive issues touching on the Religion Clauses. But understand that, as in previous interpretive eras, the Supreme Court remains deeply divided. At least two principle foundations of Religion Clause jurisprudence continue to dominate the Court. Their advocates are among the ablest jurists of the last several generations.
One, led ever more aggressively by Justice Scalia, is grounded in appeals to tradition—not jurisprudential tradition, but the cultural understandings and practices of the people in the United States around the time of the adoption of the Bill of Rights. This has led Justice Scalia to adopt an aggressively anti-separationist position. Justice Scalia starts from the position that the Religion Clauses were not meant to force a separation of state from Religion, something that would have been at odds with the lived reality of the Republic at its founding. Neutrality is defined from the perspective of the benefits or grants offered by the state. Where the government offers any benefit or privilege, it must make it available to religion on an equal basis. Indeed, the Religion Clauses compel the privileging of religion as against irreligion and may permit the state to accommodate the beliefs of the majority religion over that of all others (as long as there is no formal establishment). For minority religions, there is the solace of an individually applied Free Exercise Clause. However, where majority religious morals or ethics results in enactment of a statute that is otherwise generally applicable and not purposely intended to target a religion, then even the protections of the Free Exercise Clause would not be available. States are otherwise free to accommodate religion, either through direct funding or through the support of religious activities of citizens (Mitchell v. Helms, 530 U.S. 793 (2000) (“So long as the governmental aid is not itself ‘unsuitable for use in the public school because of religious content,’ . . . and eligibility for aid is determined in a constitutionally permissible manner, any use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern.”)). For Scalia, the way to avoid the problem of the establishment of any one religion is to permit the establishment of them all (or at least of most of them). In effect, Scalia would like to see a return to Reynolds v. United States, 98 U.S. 145 (1878) (“Congress was deprived of all legislative power over mere opinion but was left free to reach actions which were in violation of social duties or subversive of good order”) and especially Davis v. Beason, 133 U.S. 333 (1890) (“It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. . . . Probably never before in this history of this country has t been seriously contended that the whole punitive power of government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended”). Justice Scalia would apply these ideas as a general principle in both Free Exercise and Establishment Clause jurisprudence, but in a more modern, neutrality and “original understand” guise, and without the underlying anti-Catholic and anti-Mormon element.
In its more benign form, expounded in the opinions of Chief Justice Rehnquist in his final year, there is also an emphasis on neutrality and a willingness to carve a wider ambit for governmental accommodation of religion. But there is also a definitive reluctance to abandon a formal adherence to some measure of separation between organized religion and the state. Thus, for example, Rehnquist is happy enough to find no constitutional infirmity in the provision of governmental vouchers to students to be used to pay the tuition of private religious schools, but only where it is clear that the choice is made by individuals (and not the state) and where it is also clear that (at least as a formal matter) the individual was offered a true and free choice among religious and secular options (Zelman v. Simmons-Harris, 536 U.S. 639 (2002)). This wing is less convinced that the Religion Clauses compel a privileging of religion over irreligion (or secular interests) and find important the keeping of formal separation, based on a sense that the forms of Establishment of importance to the founding generation, rather than official acts of formal establishment, ought to guide the courts in the setting of the limits of accommodation. As a consequence, Rehnquist was happy to permit a school voucher system but was unwilling to require the state to provide aid to be trained in theology (Locke v. Davie). At the same time, this group is much more willing to defer to the state, both in matters of generally applicable laws that appear formally neutral with respect to religion (Smith), and state rules that accommodate religion as long as formal neutrality is observed and direct endorsement is avoided (Lynch v. Donnelly).
The other, led ever more openly by Justice Souter (with Justice Stevens not far in the background) harkens back to the more traditional jurisprudence of the post WWII period, a jurisprudence substantially rejected by the new conservatives. The core of that jurisprudence is both separation (Everson v. Bd. of Education, 330 U.S. 1 (1947)) and neutrality between religion and irreligion. It views tradition (especially in the form of original understanding as much less useful than Scalia, finding altogether too many different and irreconcilable opinions from which to extract any sort of consensus. Souter remains truest to the old Lemon test, but even he concedes that it has been substantially reworked in the cases after the late 1990s. Neutrality is important in this context, but not dispositive. Moreover, the old ‘effects’ prong in modified form becomes the great battleground for Establishment. A mere formal neutrality is rejected in favor of more intensive scrutiny of effects. The greater the resemblance of effects to the forms or indicia of establishment understood in an 18th century sense, the less likely the law would be viewed as neutral (Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)). For this group, the mere fact that the accommodation is indirect—for example religious choices are made by individuals rather than the state—makes no difference in the analysis, any indirect connection between state action and religious benefit is suspect (Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Souter dissent). Ironically, this view (that the character of the state involvement as either direct or indirect should have no effect) is shared by Scalia, but for the purpose of expanding the power of the state to directly aid religion, even in its religious endeavors (Mitchell). Lastly, Souter’s group remains true to the idea that a foundational purpose of the Religion Clauses is to avoid social and political divisiveness by avoiding the injection of Religion into the national political discourse (the Scalia camp’s response is that the only way to avoid religious discord is to permit all religions to freely participate in political life).
All have camps have substantially abandoned the three part Lemon standard (secular purpose, secular effect and little entanglement) or have reconstituted it to a greater or lesser extent in a neutrality standard (conservative majorities essentially turning the ‘effects’ prong of Lemon into a neutrality and endorsement standard over the strong jurisprudentially based objections of the Souter/Stevens camp). But the use of a common language belies the gulf that separates the definition of those terms as used by either camp. Souter starts from a foundation of separation, and the principles (if not even necessarily the holding) of Everson (Everson v. Bd. of Education, 330 U.S. 1 (1947)). He uses ‘original understanding‘ to paint a more complicated picture of the cultural understandings and consensus of the 1790s, than does Scalia and his camp (Lee v. Weisman, 505 U.S. 577 (1992) (Souter concurring)). For Souter, neither the discourse nor the practices of the times can fairly lead one to any sense of consensus about the meaning of the Religion Clauses. For Scalia, while the writings of the times might be conflicting, the practices of the times, in the aggregate, point to a general consensus against separation of government and religion. Neutrality has also acquired one of three meanings, spring from an unresolved conflict over the core animating principle of the Religion Clauses. The most traditional approach (now held by the most liberal camp) posits that neutrality requires neither governmental involvement in, nor support of, religion and is based on the idea that the Religion Clauses requires separation. The middle ground posits a neutrality between religion and irreligion, that is, that state action can neither privilege nor burden religion as against secular interests, and tolerates incidental benefits to religion where the benefit is evenhanded (Everson). Depending on how one interprets burdening or benefiting, this approach can (and has been) useful to both separationists and religionists. The most radical approach (now held by the most religiously conservative justices) posits the idea (derived from the 19th century Mormon cases and Justice Stewart’s dissent in Sherbert) that religion must be privileged over irreligion, and that neutrality requires an evenhandedness among religions (there was a bit of this in the recent ECHR case requiring UK naval vessels to provide a space for worshipping Satan).
So where are we now? The jurisprudence of the Religion Clauses has been changing radically over the last decade. Though it maintains much of its traditional outward forms, the substance of the analysis has been shifting from the framework of the Lemon standard and its inherent suspicion of any Church State contact to a standard based on formal neutrality, a greater willingness to permit governmental accommodation of religion, and an emphasis on a burden/benefit analysis. The new baseline cases include:
Free Exercise:
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); provides a basis for limiting the baseline rule of Employment Division v. Smith, 494 U.S. 872 (1990) by emphasizing the “neutrality” and “general applicability” limits of Smith. In effect, while Smith denies free exercise protection against neutral and generally applicable laws, Lukumi Babalu Aye imposes a standard for determining neutrality and general applicability that permits a court to look to the intent, impact and alternatives to achieving the statutory objectives, essentially a Sherbert style analysis. The future of the applicability of this approach may be hinted at in an opinion of Justice Alito writing as a judge of the third Circuit in Fraternal Order of Police v. Newark, 170 F.3d 359 (3rd Cir., 1999) in which the “generally applicable” standard of Smith was broadened to include categorical as well as individual exceptions, and thus broadly defined, applied a revivified compelling interest standard to the rule at issue.
Cutter v. Wilkinson, 544 U.S. 709 (2005); is both a Free Exercise and Establishment Clause case. It answered the question left open by Boerne (City of Boerne v. Flores, 521 U.S. 507 (1997)), that the state can legislate a statutory free exercise standard for federal statutes (Religious Land Use and Institutionalized Persons Act of 2000). More importantly, it set the standard for determining the judicial approach to questions under such statutory provisions. With respect to the power of Congress to accommodate Free Exercise without violating the Establishment Clause limitations, Justice Ginsburg refused to apply the traditional Lemon test (see opinion note 6). She suggested that this might be part of a class of legislation not compelled by the Free Exercise Clause and not prohibited by the Establishment Clause. To reach this result, the Court applied in lieu of the Lemon standard applied the following test: A governmental accommodation is permitted under the Establishment Clause (even if not compelled by the Free Exercise Clause in particular instances) where (1) it alleviates exceptional government created burdens on private religious exercise; (2) it takes adequate account of the burdens a requested accommodation may impose on nonbeneficiaries (ie a balance of burdens standard, that is that the accommodation does not serve to shift the burden from those accommodated to those who now must subsidize the accommodation who do not share the religious beliefs of the accommodated class); and that the accommodation will be administered neutrally among religious faiths (that is, the accommodation does not benefit one religion over or to the detriment of others). The Court affirmed that the Congress could single out religion for a benefit it does not confer on equally significant secular interests without impermissibly advancing religion (contrast the more narrow rule of Everson that focused on the incidental benefit to religion as the touchstone of permissible accommodation). With respect to the statutory Free Exercise elements of the statute, Justice Ginsburg would have read significant limitations in the interpretation of the balancing required under the compelling interest standard statutorily reimposed (all dicta because the case asserted a facial rather than an as applied challenge to the statute). She suggested that accommodations not be read to privilege religion over a state’s generalized interest in maintaining order and safety, and an expectation that the court would defer to the experience and expertise of state officials administering the statute. This case, I think, will be much more important as an Establishment Cause case than as a Free Exercise Case, For the latter, the O Centro case (below) will be more significant.
Gonzales v. O Centro Espirta Beneficente Unaio do Vegetal, 126 S.Ct. 1211 (2006); is important for two reasons. First it provides a definitive interpretive standard for statutory free exercise under the Religious Freedom Restoration Act and similar provisions. Second, it provides a window on the likely shift of standards in constitutional Free Exercise analysis. The statutory standard of Free Exercise requires application of the compelling interest standard to the particular religious claimants alone, so that state claims of general interests in uniformity, protection of the general health and safety, etc., will carry much less weight. The constitutional free exercise standard that underlies RFRA seems to have inclined the Court to narrow the reach of U.S. v. Lee 455 U.S. 182 (1982) in favor of a much broader reading of Sherbert and Yoder. If a Free Exercise analysis now focuses on the individual claimant, and the state’s interests in compelling the individual claimant to obey the law, then the state’s justification must be targeted directly n the claimant rather than a group of similarly situated people and absent a credible argument that an exemption would “seriously compromise” the state’s “ability to administer the program” it is unlikely to prevail. This solicitous approach to Free Exercise claims seems inconsistent with the dicta in Wilkinson but raised no objection among the judges who were in the majority in that case. I suspect that the divergences between Wilkinson and O Centro will be the subject of judicial exploration in the near future. I think that O Centro, combined with the evolving post RFRA “compelling interest” standard portends a significant expansion of the ability of individuals to exempt out of statutes on religious grounds. Note the importance of the case, O Centro essentially permits, on religious grounds, what the Court specifically refused to permit, on Commerce Clause grounds, in connection with the medical use of marijuana, even though the secular (medical) interests might have been characterized as compelling (Gonzalez v. Raich 545 U.S. (2005)).
Establishment
Cutter v. Wilkinson, 544 U.S. 709 (2005); see description above for the standard. The case suggests that, as a general rule, the three prong standard (relieves burdens on religion, does not require others to subsidize the religious conduct accommodated, and advances interdenominational neutrality) is the basis for permissible accommodation under the Establishment Clause.
Zelman v. Simmons-Harris, 536 U.S. 639 (2002); this case provides the new jurisprudential framework for working through the jurisprudence of providing aid to schools (including parochial schools) specifically, and more generally on the principles of Establishment Clause jurisprudence. The case points to a new jurisprudential basis for Establishment Clause analysis, in which the first (purpose) prong of Lemon is reduced to insignificance (Rehnquist had already striven to narrow the first prong to situations where the statute at issue was entirely motivated by a religious purpose since Lynch v. Donnelly, 465 U.S. 668 (1984), see also Wallace v. Jaffree, 472 U.S. 38 (1985)), the effects prong is modified to serve as a basis for a new formalist approach., and the entanglements prong drops out completely (except in dissent). The new standard is based on a tolerance for incidental aid to religion where the aid is indirectly procured. “[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct governmental aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.” Zelman. In such circumstances, the indirect and incidental benefit to religion is not fatal as long as the benefit can be reasonably attributed to the action of individuals and not the government. To apply this standard, the Court constructs a two-part reinterpretation of the Lemon ‘effects’ test: (1) is participation in the program based on neutral and neutrally applied criteria? and; (2) are the choices among the participants genuine and independent. For purposes of the first part of the test, the court looks at the class of individuals to receive the benefit, and the rules for institutional participation in the program. The court also looks to see if there are any financial incentives that skew the program toward religious schools. With respect to the genuineness and independence of individual choice, the Court looks to the element of coercion inherent in the choice (was there a genuine opportunity for choice among religious and non religious options, evaluated by looking at all options available to children, not just options among private school choices. The effects test no longer has much of a basis in actual effects—the touchstone is formal effects (/a consequence bitterly derided by Justice Souter in dissent). “The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school.” Zelman. Justice Souter’s dissent provides an excellent application of the old Lemon test and an explanation of the way the majority’s new standard departs form the old Establishment Clause jurisprudence, especially with respect to the reconstitution of neutrality. Justice Breyer’s dissent provides an excellent account of the older jurisprudence that a core principle of the Establishment Clause is to avoid sectarian strife, and the relationship of this core principle with the old third prong.
Mitchell v. Helms, 530 U.S. 793 (2000); a plurality opinion that is useful only for the exposition of what may be the future of Establishment Clause jurisprudence should Scalia/Thomas every get a majority of the Court behind them. There is a nod to Lemon but the standard the plurality applies has hardly anything to do with the old standard. It starts with the modern conservative notion of neutrality in the provision of aid: “if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose.” This stands the old effects test on its ear through a neutrality analysis that starts from the presumption that any attempt to keep religion out of participating in governmental programs constitutes a burdening of religion (in contrast to the earlier approach that started form the presumption that the government had no obligation to give anything to religion). Given this starting point, the plurality questioned the need to avoid direct government aid to religion—as long as its object is secular, the use of the benefit for purely religious purposes should be irrelevant. The plurality was countered by strongly negative concurrences and dissents. The concurrence refused to embrace the purpose or object neutrality is enough standard in favor of the rule that would eventually form the majority rule in Zelman. The dissent offered the more traditional substance over form analysis, suggesting that formal neutrality that had the effect of permitting the state to support religion in the manner that was found offensive at the time of the adoption of the Religion Clauses ought to remain offensive; since the direct or indirect support of a religious establishment was at the heart of the Religion Clauses in 1790, then it ought to form the heart of analysis now. Formalist standards based on neutrality effectively eviscerate the core values of the Religion Clauses even as they pretend to further them.
Locke v. Davey, 540 U.S. 712 (2004); illustrates the limits of Establishment Clause neutrality and formalist analysis and provides, for the first time, a window into the fundamental break between the radicals (Scalia/Thomas) and the conservative moderates (Rehnquist here joined by the liberal traditionalists). It presents the inverse of Cutter v. Wilkinson, 544 U.S. 709 (2005) and ought to be read together with that case. The majority rejected the idea that because the Establishment Clause might permit a state to permit individuals to make a private choice to use state money to pursue a degree in devotional theology, it would constitute a violation of the Free Exercise Clause to deny individuals that right. Like Wilkerson the Court confirmed that the Free Exercise and Establishment Clauses do not cover the same ground. The more interesting question, then, was whether an individual could use the Free Exercise Clause to compel the State to permit him to use the funds in a way forbidden by the State. The answer, in this case was no. In arriving at that answer, the Court might have used language that could limit the breadth of the constitutional Free Exercise Clause in ways that might conflict with the implications of O Centro. It rejected the idea, expressed by the plurality in Mitchell, that any benefit program that does not permit religion to participate on the terms as secular groups or individuals must be presumptively unconstitutional because it cannot be neutral with respect to religion. The Court, over a vigorous dissent, held that interpretation to constitute an unwarranted extension of the facts and reasoning of Lukumi and its progeny. Instead, the Court embraced the more traditional baseline for determining neutrality: the fact that the state has chosen not to fund a particular category of instruction (in this case) does not constitute a burdening of the category, as long as there is no other impediment (“It does not deny to ministers the right to participate in the political affairs of the community . . . . And it doers not require students to choose between their religious beliefs and receiving a government benefit”).
McCreary County v. ACLU, 125 S. Ct. 2722 (2005); provides strong evidence of the volatility of Religion Clause jurisprudence and the importance of the lack of consensus on Religion Clause fundamentals for the development of law. McCreary can be read as Souter’s dissent in Zelman now reconstituted as a majority opinion in a case involving not school funding, but the use of the state or its facilities to present religious messages. At best, it suggest that the Establishment Clause will apply different standards depending on the context (funding vs. presentation of messages). At worst, it suggests that the Court has been unable to settle on a stable jurisprudence as it evolves from the Everson/Lemon framework to the Zelman/McCreary County/Wilkerson framework. Justice Souter announced the fundamental principles of Establishment Clause jurisprudence—(1) neutrality between religion and religion, and between religion and nonreligion; and (2) liberty and religious stability demand a religious tolerance that respects the religious views of all citizens—which may be hard to reconcile with other cases. Justice Souter rejected the attempt to narrow the application of the purpose prong of Lemon (purpose prong violated where religion is a primary (and not the sole) motivation of enactment). Justice Souter than announced a more narrow power in government to support religious messages, one grounded in separation and the development of a clear context in which the religious message is essentially overpowered by a secular message. Justice Scalia, in dissent, categorically rejects the Religion Clause principles embraced by the majority, asserting that the only thing required by the Religion Clause is denominational neutrality. Expanding on the hints he made in Mitchell, Justice Scalia here advances his notion that the Establishment Clause permits the state to favor one religion over another, as long as the formal requisites of neutrality are met (assuming that true neutrality is impossible) and offering members of non majority religions the solace of the Free Exercise Clause, to the extent it is available (and of course, for Scalia, the Free Exercise Clause might be more available than under current doctrine, but that requires overturning the conservative moderate’s holding in Locke v. Davey).
Van Orden v. Perry, 125 S. Ct. 2854 (2005); was the companion case to McCreary County (display of the Protestant version of the Ten Commandments by the state), but this time a plurality of the moderate conservatives reached a different result than in McCreary County. Justice Rehnquist’s plurality stressed tradition and the practices permitted at the time of the Founding. He also suggested a theory hinted at since McColloch v. Maryland, a sort of constitutional adverse possession (since the practices have been so long permitted without complaint, it is too late in the day to suggest that they should never have been allowed). And the plurality again expressed its belief that Lynch v. Donnelly’s reading of the purpose prong of the Lemon test, a reading rejected by Justice Souter in McCreary County, is the appropriate basis for Establishment jurisprudence. Justice Breyer, providing the critical fifth vote, appeared to reject the Chief Justice’s attempt to resurrect the Lynch interpretation of the purpose prong and hinged his decision both on the ‘laches’ argument and his sense that any other result would show a hostility to religion that would advance the sectarian strife that Justice Souter declared in McCreary County to be a baseli9ne principle for application of the Establishment Clause. Justice Stevens’s dissent stressed the denominational neutrality principles as the basis for decision. Since the display favored one set of religions over others, then the display constitutes an invalid Establishment.
Good News Club v. Milford Central School, 533 U.S. 98 (2001); is valuable both for the application of the new neutrality principles in cases involving the power of the state to limit religious expression on or in connection with state functions, and the increasing willingness of the Court to focus on a formal standard and avoid any substantive analysis. The case stands in tension with the opinions in which Justice Souter has written for the majority. To that extent, it also illustrates the volatility of Establishment jurisprudence. Justice Thomas’ opinion was formalist and focused on neutrality analysis without regard to the content of the activities to be permitted. Justice Souter’s dissent emphasized a substantive analysis, which he suggested ought to trump the formalism of the majority’s analysis. He found it odd that the disestablishmentarianism of the Establishment Clause ought to produce a jurisprudence that compelled the state to permit the holding of religious services on its property.
Consequences:
This short summary of current case law suggests a number of things:
1. The Supreme Court has essentially abandoned the jurisprudential standards that guided it from Everson through the early 1990s. Those standards, based on a roughly observed consensus about the application of a neutrality between religion and non-religion, and among religion, was based on a notion of separation between religion and the state. But this set of standards was always fragile. It reflected a temporary pause point within a polity that did not know its own mind about the relationship between the state and religion. Even as the Court was crafting doctrines that were meant to make it difficult for states to accommodate religion, exemplified in the Lemon standard, its members were suggesting that this standard was either wrong, unworkable or based on foundational principles that ought to be rejected.
2. The Court has not been able to fashion another consensus. Instead, it has moved its jurisprudential moorings to one that permits the Court to tolerate greater state accommodation of religion, even accommodations that might incidentally favor religion, and that makes it harder for the state to prevent dissenting individuals from excusing themselves form compliance with statutes under the Free Exercise Clause.
3. That movement has been accomplished by a change in the language of analysis—from purpose, effects and entanglement, to neutrality, benefit, burden, and choice. Whatever the (temporary) outcome of any new consensus, it is clear that the Court has adopted a new jurisprudential language for its engagement with the Religion Clauses. And indeed, these new cases, and the new framework for analysis, makes most cases decided before 2000 unlikely to be useful (other than for the value of their holdings). It is clear that one can go back to the older cases and apply the new framework in ways that either reinforces the original holdings or suggests that the cases are now much more vulnerable. As a result I expect to see many of the older cases litigated again under the new framework.
4. The new language has also divided the Court between formalists and functionalists. That divide has been most apparent in the division over the meaning of effects and the character of neutrality. While the obsession with substantive analysis produced its share of perverse results in the 1960s and 1970s, the new formalist framework will produce its own perversities. As we have seen, under a formalist framework, the Court has been willing, by applying an original understanding analysis, permitted those activities which to an 18th century sensibility were at the heart of establishment—the financial support of theological training and the support of religious services and education. The new formalists say this is different because the state will be expected to establish all religions, the liberal traditionalists say this is an absurd result and one that violates the core understanding of the Clauses (and therefore would require a constitutional amendment to sustain).
5. There is a great division between at least two factional blocks on the Court as to the guiding principles of the Religion Clauses. One group believes that religion must be privileged over non-religion, and even that the majority religion may be privileged over all others, as long as the state adheres to formal neutrality and demonstrates no animus to any religion, and that the path to disestablishment lies in the establishment of all religion. They believe that the Religion Clauses requires the state to favor religion, and that separation is essentially a structural burden on religion. On the other side the liberal traditionalists focus on separation as the baseline for analysis. The state has an active obligation to distance itself from all religion and that the starting point for all analysis is neutrality between religion and irreligion. While state may not burden religion, they are under no obligation to provide religion any benefit, including benefits otherwise made available to secular interests.
6. Even if the newest members of the Court will produce consistent majorities for a time, those majorities will, in turn, be unstable. This is an area of constitutional law in which, over the last century, majority opinions have a way of turning into dissents and vice versa with stunning regularity. This is not surprising; the lack of consensus reflects in full measure the divisions within our political culture, divisions that show no evidence of ending soon. It is likely, however, that the Court will increasingly turn to the jurisprudential baseline advanced by Justice Scalia. It is likely that Justice Alito will tend to share Justice Scalia’s views. But Justice Roberts, to the extent he embraces the former Chief Justice’s views, may act as a limiting force.
What follows is a brief suggestion of the way the Supreme Court is rewriting the analytical bases for approaching interpretive issues touching on the Religion Clauses. But understand that, as in previous interpretive eras, the Supreme Court remains deeply divided. At least two principle foundations of Religion Clause jurisprudence continue to dominate the Court. Their advocates are among the ablest jurists of the last several generations.
One, led ever more aggressively by Justice Scalia, is grounded in appeals to tradition—not jurisprudential tradition, but the cultural understandings and practices of the people in the United States around the time of the adoption of the Bill of Rights. This has led Justice Scalia to adopt an aggressively anti-separationist position. Justice Scalia starts from the position that the Religion Clauses were not meant to force a separation of state from Religion, something that would have been at odds with the lived reality of the Republic at its founding. Neutrality is defined from the perspective of the benefits or grants offered by the state. Where the government offers any benefit or privilege, it must make it available to religion on an equal basis. Indeed, the Religion Clauses compel the privileging of religion as against irreligion and may permit the state to accommodate the beliefs of the majority religion over that of all others (as long as there is no formal establishment). For minority religions, there is the solace of an individually applied Free Exercise Clause. However, where majority religious morals or ethics results in enactment of a statute that is otherwise generally applicable and not purposely intended to target a religion, then even the protections of the Free Exercise Clause would not be available. States are otherwise free to accommodate religion, either through direct funding or through the support of religious activities of citizens (Mitchell v. Helms, 530 U.S. 793 (2000) (“So long as the governmental aid is not itself ‘unsuitable for use in the public school because of religious content,’ . . . and eligibility for aid is determined in a constitutionally permissible manner, any use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern.”)). For Scalia, the way to avoid the problem of the establishment of any one religion is to permit the establishment of them all (or at least of most of them). In effect, Scalia would like to see a return to Reynolds v. United States, 98 U.S. 145 (1878) (“Congress was deprived of all legislative power over mere opinion but was left free to reach actions which were in violation of social duties or subversive of good order”) and especially Davis v. Beason, 133 U.S. 333 (1890) (“It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. . . . Probably never before in this history of this country has t been seriously contended that the whole punitive power of government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended”). Justice Scalia would apply these ideas as a general principle in both Free Exercise and Establishment Clause jurisprudence, but in a more modern, neutrality and “original understand” guise, and without the underlying anti-Catholic and anti-Mormon element.
In its more benign form, expounded in the opinions of Chief Justice Rehnquist in his final year, there is also an emphasis on neutrality and a willingness to carve a wider ambit for governmental accommodation of religion. But there is also a definitive reluctance to abandon a formal adherence to some measure of separation between organized religion and the state. Thus, for example, Rehnquist is happy enough to find no constitutional infirmity in the provision of governmental vouchers to students to be used to pay the tuition of private religious schools, but only where it is clear that the choice is made by individuals (and not the state) and where it is also clear that (at least as a formal matter) the individual was offered a true and free choice among religious and secular options (Zelman v. Simmons-Harris, 536 U.S. 639 (2002)). This wing is less convinced that the Religion Clauses compel a privileging of religion over irreligion (or secular interests) and find important the keeping of formal separation, based on a sense that the forms of Establishment of importance to the founding generation, rather than official acts of formal establishment, ought to guide the courts in the setting of the limits of accommodation. As a consequence, Rehnquist was happy to permit a school voucher system but was unwilling to require the state to provide aid to be trained in theology (Locke v. Davie). At the same time, this group is much more willing to defer to the state, both in matters of generally applicable laws that appear formally neutral with respect to religion (Smith), and state rules that accommodate religion as long as formal neutrality is observed and direct endorsement is avoided (Lynch v. Donnelly).
The other, led ever more openly by Justice Souter (with Justice Stevens not far in the background) harkens back to the more traditional jurisprudence of the post WWII period, a jurisprudence substantially rejected by the new conservatives. The core of that jurisprudence is both separation (Everson v. Bd. of Education, 330 U.S. 1 (1947)) and neutrality between religion and irreligion. It views tradition (especially in the form of original understanding as much less useful than Scalia, finding altogether too many different and irreconcilable opinions from which to extract any sort of consensus. Souter remains truest to the old Lemon test, but even he concedes that it has been substantially reworked in the cases after the late 1990s. Neutrality is important in this context, but not dispositive. Moreover, the old ‘effects’ prong in modified form becomes the great battleground for Establishment. A mere formal neutrality is rejected in favor of more intensive scrutiny of effects. The greater the resemblance of effects to the forms or indicia of establishment understood in an 18th century sense, the less likely the law would be viewed as neutral (Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)). For this group, the mere fact that the accommodation is indirect—for example religious choices are made by individuals rather than the state—makes no difference in the analysis, any indirect connection between state action and religious benefit is suspect (Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Souter dissent). Ironically, this view (that the character of the state involvement as either direct or indirect should have no effect) is shared by Scalia, but for the purpose of expanding the power of the state to directly aid religion, even in its religious endeavors (Mitchell). Lastly, Souter’s group remains true to the idea that a foundational purpose of the Religion Clauses is to avoid social and political divisiveness by avoiding the injection of Religion into the national political discourse (the Scalia camp’s response is that the only way to avoid religious discord is to permit all religions to freely participate in political life).
All have camps have substantially abandoned the three part Lemon standard (secular purpose, secular effect and little entanglement) or have reconstituted it to a greater or lesser extent in a neutrality standard (conservative majorities essentially turning the ‘effects’ prong of Lemon into a neutrality and endorsement standard over the strong jurisprudentially based objections of the Souter/Stevens camp). But the use of a common language belies the gulf that separates the definition of those terms as used by either camp. Souter starts from a foundation of separation, and the principles (if not even necessarily the holding) of Everson (Everson v. Bd. of Education, 330 U.S. 1 (1947)). He uses ‘original understanding‘ to paint a more complicated picture of the cultural understandings and consensus of the 1790s, than does Scalia and his camp (Lee v. Weisman, 505 U.S. 577 (1992) (Souter concurring)). For Souter, neither the discourse nor the practices of the times can fairly lead one to any sense of consensus about the meaning of the Religion Clauses. For Scalia, while the writings of the times might be conflicting, the practices of the times, in the aggregate, point to a general consensus against separation of government and religion. Neutrality has also acquired one of three meanings, spring from an unresolved conflict over the core animating principle of the Religion Clauses. The most traditional approach (now held by the most liberal camp) posits that neutrality requires neither governmental involvement in, nor support of, religion and is based on the idea that the Religion Clauses requires separation. The middle ground posits a neutrality between religion and irreligion, that is, that state action can neither privilege nor burden religion as against secular interests, and tolerates incidental benefits to religion where the benefit is evenhanded (Everson). Depending on how one interprets burdening or benefiting, this approach can (and has been) useful to both separationists and religionists. The most radical approach (now held by the most religiously conservative justices) posits the idea (derived from the 19th century Mormon cases and Justice Stewart’s dissent in Sherbert) that religion must be privileged over irreligion, and that neutrality requires an evenhandedness among religions (there was a bit of this in the recent ECHR case requiring UK naval vessels to provide a space for worshipping Satan).
So where are we now? The jurisprudence of the Religion Clauses has been changing radically over the last decade. Though it maintains much of its traditional outward forms, the substance of the analysis has been shifting from the framework of the Lemon standard and its inherent suspicion of any Church State contact to a standard based on formal neutrality, a greater willingness to permit governmental accommodation of religion, and an emphasis on a burden/benefit analysis. The new baseline cases include:
Free Exercise:
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); provides a basis for limiting the baseline rule of Employment Division v. Smith, 494 U.S. 872 (1990) by emphasizing the “neutrality” and “general applicability” limits of Smith. In effect, while Smith denies free exercise protection against neutral and generally applicable laws, Lukumi Babalu Aye imposes a standard for determining neutrality and general applicability that permits a court to look to the intent, impact and alternatives to achieving the statutory objectives, essentially a Sherbert style analysis. The future of the applicability of this approach may be hinted at in an opinion of Justice Alito writing as a judge of the third Circuit in Fraternal Order of Police v. Newark, 170 F.3d 359 (3rd Cir., 1999) in which the “generally applicable” standard of Smith was broadened to include categorical as well as individual exceptions, and thus broadly defined, applied a revivified compelling interest standard to the rule at issue.
Cutter v. Wilkinson, 544 U.S. 709 (2005); is both a Free Exercise and Establishment Clause case. It answered the question left open by Boerne (City of Boerne v. Flores, 521 U.S. 507 (1997)), that the state can legislate a statutory free exercise standard for federal statutes (Religious Land Use and Institutionalized Persons Act of 2000). More importantly, it set the standard for determining the judicial approach to questions under such statutory provisions. With respect to the power of Congress to accommodate Free Exercise without violating the Establishment Clause limitations, Justice Ginsburg refused to apply the traditional Lemon test (see opinion note 6). She suggested that this might be part of a class of legislation not compelled by the Free Exercise Clause and not prohibited by the Establishment Clause. To reach this result, the Court applied in lieu of the Lemon standard applied the following test: A governmental accommodation is permitted under the Establishment Clause (even if not compelled by the Free Exercise Clause in particular instances) where (1) it alleviates exceptional government created burdens on private religious exercise; (2) it takes adequate account of the burdens a requested accommodation may impose on nonbeneficiaries (ie a balance of burdens standard, that is that the accommodation does not serve to shift the burden from those accommodated to those who now must subsidize the accommodation who do not share the religious beliefs of the accommodated class); and that the accommodation will be administered neutrally among religious faiths (that is, the accommodation does not benefit one religion over or to the detriment of others). The Court affirmed that the Congress could single out religion for a benefit it does not confer on equally significant secular interests without impermissibly advancing religion (contrast the more narrow rule of Everson that focused on the incidental benefit to religion as the touchstone of permissible accommodation). With respect to the statutory Free Exercise elements of the statute, Justice Ginsburg would have read significant limitations in the interpretation of the balancing required under the compelling interest standard statutorily reimposed (all dicta because the case asserted a facial rather than an as applied challenge to the statute). She suggested that accommodations not be read to privilege religion over a state’s generalized interest in maintaining order and safety, and an expectation that the court would defer to the experience and expertise of state officials administering the statute. This case, I think, will be much more important as an Establishment Cause case than as a Free Exercise Case, For the latter, the O Centro case (below) will be more significant.
Gonzales v. O Centro Espirta Beneficente Unaio do Vegetal, 126 S.Ct. 1211 (2006); is important for two reasons. First it provides a definitive interpretive standard for statutory free exercise under the Religious Freedom Restoration Act and similar provisions. Second, it provides a window on the likely shift of standards in constitutional Free Exercise analysis. The statutory standard of Free Exercise requires application of the compelling interest standard to the particular religious claimants alone, so that state claims of general interests in uniformity, protection of the general health and safety, etc., will carry much less weight. The constitutional free exercise standard that underlies RFRA seems to have inclined the Court to narrow the reach of U.S. v. Lee 455 U.S. 182 (1982) in favor of a much broader reading of Sherbert and Yoder. If a Free Exercise analysis now focuses on the individual claimant, and the state’s interests in compelling the individual claimant to obey the law, then the state’s justification must be targeted directly n the claimant rather than a group of similarly situated people and absent a credible argument that an exemption would “seriously compromise” the state’s “ability to administer the program” it is unlikely to prevail. This solicitous approach to Free Exercise claims seems inconsistent with the dicta in Wilkinson but raised no objection among the judges who were in the majority in that case. I suspect that the divergences between Wilkinson and O Centro will be the subject of judicial exploration in the near future. I think that O Centro, combined with the evolving post RFRA “compelling interest” standard portends a significant expansion of the ability of individuals to exempt out of statutes on religious grounds. Note the importance of the case, O Centro essentially permits, on religious grounds, what the Court specifically refused to permit, on Commerce Clause grounds, in connection with the medical use of marijuana, even though the secular (medical) interests might have been characterized as compelling (Gonzalez v. Raich 545 U.S. (2005)).
Establishment
Cutter v. Wilkinson, 544 U.S. 709 (2005); see description above for the standard. The case suggests that, as a general rule, the three prong standard (relieves burdens on religion, does not require others to subsidize the religious conduct accommodated, and advances interdenominational neutrality) is the basis for permissible accommodation under the Establishment Clause.
Zelman v. Simmons-Harris, 536 U.S. 639 (2002); this case provides the new jurisprudential framework for working through the jurisprudence of providing aid to schools (including parochial schools) specifically, and more generally on the principles of Establishment Clause jurisprudence. The case points to a new jurisprudential basis for Establishment Clause analysis, in which the first (purpose) prong of Lemon is reduced to insignificance (Rehnquist had already striven to narrow the first prong to situations where the statute at issue was entirely motivated by a religious purpose since Lynch v. Donnelly, 465 U.S. 668 (1984), see also Wallace v. Jaffree, 472 U.S. 38 (1985)), the effects prong is modified to serve as a basis for a new formalist approach., and the entanglements prong drops out completely (except in dissent). The new standard is based on a tolerance for incidental aid to religion where the aid is indirectly procured. “[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct governmental aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.” Zelman. In such circumstances, the indirect and incidental benefit to religion is not fatal as long as the benefit can be reasonably attributed to the action of individuals and not the government. To apply this standard, the Court constructs a two-part reinterpretation of the Lemon ‘effects’ test: (1) is participation in the program based on neutral and neutrally applied criteria? and; (2) are the choices among the participants genuine and independent. For purposes of the first part of the test, the court looks at the class of individuals to receive the benefit, and the rules for institutional participation in the program. The court also looks to see if there are any financial incentives that skew the program toward religious schools. With respect to the genuineness and independence of individual choice, the Court looks to the element of coercion inherent in the choice (was there a genuine opportunity for choice among religious and non religious options, evaluated by looking at all options available to children, not just options among private school choices. The effects test no longer has much of a basis in actual effects—the touchstone is formal effects (/a consequence bitterly derided by Justice Souter in dissent). “The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school.” Zelman. Justice Souter’s dissent provides an excellent application of the old Lemon test and an explanation of the way the majority’s new standard departs form the old Establishment Clause jurisprudence, especially with respect to the reconstitution of neutrality. Justice Breyer’s dissent provides an excellent account of the older jurisprudence that a core principle of the Establishment Clause is to avoid sectarian strife, and the relationship of this core principle with the old third prong.
Mitchell v. Helms, 530 U.S. 793 (2000); a plurality opinion that is useful only for the exposition of what may be the future of Establishment Clause jurisprudence should Scalia/Thomas every get a majority of the Court behind them. There is a nod to Lemon but the standard the plurality applies has hardly anything to do with the old standard. It starts with the modern conservative notion of neutrality in the provision of aid: “if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose.” This stands the old effects test on its ear through a neutrality analysis that starts from the presumption that any attempt to keep religion out of participating in governmental programs constitutes a burdening of religion (in contrast to the earlier approach that started form the presumption that the government had no obligation to give anything to religion). Given this starting point, the plurality questioned the need to avoid direct government aid to religion—as long as its object is secular, the use of the benefit for purely religious purposes should be irrelevant. The plurality was countered by strongly negative concurrences and dissents. The concurrence refused to embrace the purpose or object neutrality is enough standard in favor of the rule that would eventually form the majority rule in Zelman. The dissent offered the more traditional substance over form analysis, suggesting that formal neutrality that had the effect of permitting the state to support religion in the manner that was found offensive at the time of the adoption of the Religion Clauses ought to remain offensive; since the direct or indirect support of a religious establishment was at the heart of the Religion Clauses in 1790, then it ought to form the heart of analysis now. Formalist standards based on neutrality effectively eviscerate the core values of the Religion Clauses even as they pretend to further them.
Locke v. Davey, 540 U.S. 712 (2004); illustrates the limits of Establishment Clause neutrality and formalist analysis and provides, for the first time, a window into the fundamental break between the radicals (Scalia/Thomas) and the conservative moderates (Rehnquist here joined by the liberal traditionalists). It presents the inverse of Cutter v. Wilkinson, 544 U.S. 709 (2005) and ought to be read together with that case. The majority rejected the idea that because the Establishment Clause might permit a state to permit individuals to make a private choice to use state money to pursue a degree in devotional theology, it would constitute a violation of the Free Exercise Clause to deny individuals that right. Like Wilkerson the Court confirmed that the Free Exercise and Establishment Clauses do not cover the same ground. The more interesting question, then, was whether an individual could use the Free Exercise Clause to compel the State to permit him to use the funds in a way forbidden by the State. The answer, in this case was no. In arriving at that answer, the Court might have used language that could limit the breadth of the constitutional Free Exercise Clause in ways that might conflict with the implications of O Centro. It rejected the idea, expressed by the plurality in Mitchell, that any benefit program that does not permit religion to participate on the terms as secular groups or individuals must be presumptively unconstitutional because it cannot be neutral with respect to religion. The Court, over a vigorous dissent, held that interpretation to constitute an unwarranted extension of the facts and reasoning of Lukumi and its progeny. Instead, the Court embraced the more traditional baseline for determining neutrality: the fact that the state has chosen not to fund a particular category of instruction (in this case) does not constitute a burdening of the category, as long as there is no other impediment (“It does not deny to ministers the right to participate in the political affairs of the community . . . . And it doers not require students to choose between their religious beliefs and receiving a government benefit”).
McCreary County v. ACLU, 125 S. Ct. 2722 (2005); provides strong evidence of the volatility of Religion Clause jurisprudence and the importance of the lack of consensus on Religion Clause fundamentals for the development of law. McCreary can be read as Souter’s dissent in Zelman now reconstituted as a majority opinion in a case involving not school funding, but the use of the state or its facilities to present religious messages. At best, it suggest that the Establishment Clause will apply different standards depending on the context (funding vs. presentation of messages). At worst, it suggests that the Court has been unable to settle on a stable jurisprudence as it evolves from the Everson/Lemon framework to the Zelman/McCreary County/Wilkerson framework. Justice Souter announced the fundamental principles of Establishment Clause jurisprudence—(1) neutrality between religion and religion, and between religion and nonreligion; and (2) liberty and religious stability demand a religious tolerance that respects the religious views of all citizens—which may be hard to reconcile with other cases. Justice Souter rejected the attempt to narrow the application of the purpose prong of Lemon (purpose prong violated where religion is a primary (and not the sole) motivation of enactment). Justice Souter than announced a more narrow power in government to support religious messages, one grounded in separation and the development of a clear context in which the religious message is essentially overpowered by a secular message. Justice Scalia, in dissent, categorically rejects the Religion Clause principles embraced by the majority, asserting that the only thing required by the Religion Clause is denominational neutrality. Expanding on the hints he made in Mitchell, Justice Scalia here advances his notion that the Establishment Clause permits the state to favor one religion over another, as long as the formal requisites of neutrality are met (assuming that true neutrality is impossible) and offering members of non majority religions the solace of the Free Exercise Clause, to the extent it is available (and of course, for Scalia, the Free Exercise Clause might be more available than under current doctrine, but that requires overturning the conservative moderate’s holding in Locke v. Davey).
Van Orden v. Perry, 125 S. Ct. 2854 (2005); was the companion case to McCreary County (display of the Protestant version of the Ten Commandments by the state), but this time a plurality of the moderate conservatives reached a different result than in McCreary County. Justice Rehnquist’s plurality stressed tradition and the practices permitted at the time of the Founding. He also suggested a theory hinted at since McColloch v. Maryland, a sort of constitutional adverse possession (since the practices have been so long permitted without complaint, it is too late in the day to suggest that they should never have been allowed). And the plurality again expressed its belief that Lynch v. Donnelly’s reading of the purpose prong of the Lemon test, a reading rejected by Justice Souter in McCreary County, is the appropriate basis for Establishment jurisprudence. Justice Breyer, providing the critical fifth vote, appeared to reject the Chief Justice’s attempt to resurrect the Lynch interpretation of the purpose prong and hinged his decision both on the ‘laches’ argument and his sense that any other result would show a hostility to religion that would advance the sectarian strife that Justice Souter declared in McCreary County to be a baseli9ne principle for application of the Establishment Clause. Justice Stevens’s dissent stressed the denominational neutrality principles as the basis for decision. Since the display favored one set of religions over others, then the display constitutes an invalid Establishment.
Good News Club v. Milford Central School, 533 U.S. 98 (2001); is valuable both for the application of the new neutrality principles in cases involving the power of the state to limit religious expression on or in connection with state functions, and the increasing willingness of the Court to focus on a formal standard and avoid any substantive analysis. The case stands in tension with the opinions in which Justice Souter has written for the majority. To that extent, it also illustrates the volatility of Establishment jurisprudence. Justice Thomas’ opinion was formalist and focused on neutrality analysis without regard to the content of the activities to be permitted. Justice Souter’s dissent emphasized a substantive analysis, which he suggested ought to trump the formalism of the majority’s analysis. He found it odd that the disestablishmentarianism of the Establishment Clause ought to produce a jurisprudence that compelled the state to permit the holding of religious services on its property.
Consequences:
This short summary of current case law suggests a number of things:
1. The Supreme Court has essentially abandoned the jurisprudential standards that guided it from Everson through the early 1990s. Those standards, based on a roughly observed consensus about the application of a neutrality between religion and non-religion, and among religion, was based on a notion of separation between religion and the state. But this set of standards was always fragile. It reflected a temporary pause point within a polity that did not know its own mind about the relationship between the state and religion. Even as the Court was crafting doctrines that were meant to make it difficult for states to accommodate religion, exemplified in the Lemon standard, its members were suggesting that this standard was either wrong, unworkable or based on foundational principles that ought to be rejected.
2. The Court has not been able to fashion another consensus. Instead, it has moved its jurisprudential moorings to one that permits the Court to tolerate greater state accommodation of religion, even accommodations that might incidentally favor religion, and that makes it harder for the state to prevent dissenting individuals from excusing themselves form compliance with statutes under the Free Exercise Clause.
3. That movement has been accomplished by a change in the language of analysis—from purpose, effects and entanglement, to neutrality, benefit, burden, and choice. Whatever the (temporary) outcome of any new consensus, it is clear that the Court has adopted a new jurisprudential language for its engagement with the Religion Clauses. And indeed, these new cases, and the new framework for analysis, makes most cases decided before 2000 unlikely to be useful (other than for the value of their holdings). It is clear that one can go back to the older cases and apply the new framework in ways that either reinforces the original holdings or suggests that the cases are now much more vulnerable. As a result I expect to see many of the older cases litigated again under the new framework.
4. The new language has also divided the Court between formalists and functionalists. That divide has been most apparent in the division over the meaning of effects and the character of neutrality. While the obsession with substantive analysis produced its share of perverse results in the 1960s and 1970s, the new formalist framework will produce its own perversities. As we have seen, under a formalist framework, the Court has been willing, by applying an original understanding analysis, permitted those activities which to an 18th century sensibility were at the heart of establishment—the financial support of theological training and the support of religious services and education. The new formalists say this is different because the state will be expected to establish all religions, the liberal traditionalists say this is an absurd result and one that violates the core understanding of the Clauses (and therefore would require a constitutional amendment to sustain).
5. There is a great division between at least two factional blocks on the Court as to the guiding principles of the Religion Clauses. One group believes that religion must be privileged over non-religion, and even that the majority religion may be privileged over all others, as long as the state adheres to formal neutrality and demonstrates no animus to any religion, and that the path to disestablishment lies in the establishment of all religion. They believe that the Religion Clauses requires the state to favor religion, and that separation is essentially a structural burden on religion. On the other side the liberal traditionalists focus on separation as the baseline for analysis. The state has an active obligation to distance itself from all religion and that the starting point for all analysis is neutrality between religion and irreligion. While state may not burden religion, they are under no obligation to provide religion any benefit, including benefits otherwise made available to secular interests.
6. Even if the newest members of the Court will produce consistent majorities for a time, those majorities will, in turn, be unstable. This is an area of constitutional law in which, over the last century, majority opinions have a way of turning into dissents and vice versa with stunning regularity. This is not surprising; the lack of consensus reflects in full measure the divisions within our political culture, divisions that show no evidence of ending soon. It is likely, however, that the Court will increasingly turn to the jurisprudential baseline advanced by Justice Scalia. It is likely that Justice Alito will tend to share Justice Scalia’s views. But Justice Roberts, to the extent he embraces the former Chief Justice’s views, may act as a limiting force.
Great reading, Professor.
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