Amendment 1, Clause 1: The Establishment Clause

Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom

Crosspost from Balkinization

What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea.  Here it is:  Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities.  The Jacobins were wrong.  In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.

The contributions to the volume dealing with politics, democracy, and expression – in particular, the essays written by Robert Post and Yochai Benkler – are sensitive to the structures through which we participate in politics and engage in protected, democracy-enhancing speech.  They are attentive, in other words, to the infrastructure that is required for the exercise and maintenance of cherished freedoms. 

Well, like the freedom of speech, religious freedom has and requires an infrastructure.  Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience.  The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them.  The values and goods that the First Amendment’s Religion Clauses are today understood to embody and protect—and, we can usefully refer to this cluster of goods and values as “religious freedom”—are well served by a civil-society landscape that is thick with religious institutions and associations, and by legal rules that acknowledge and capture their importance.  These institutions contribute to—they do not only benefit from, and they are not only protected by—the reality of religious freedom under law.

The theories and doctrines we use to understand, apply and enforce the First Amendment’s religious-freedom provisions should reflect and respect this fact.  They should not be constructed solely to deal with the problems that were the focus of the thoughtful essays on religious liberty contributed by Noah Feldman and Bill Marshall, namely, the task of identifying the bounds of permissible religion-regarding spending or expression by government.  Religious liberty, fully understood, involves not only the immunities of believers but also what was once called “the freedom of the church.”  And, as Feldman and Marshall explain, the separation of church and state involves legal arrangements and constitutional constraints whose point is not so much to artificially exclude religious faith from our civil and political lives as to respect religious institutions’ independence and autonomy.

In my view, if we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Chip Lupu and Bob Tuttle once put it, whether “religious entities occupy a distinctive place in our constitutional order.”  I believe they do, and should.  Today, though, American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals’ rights, beliefs, consciences, and practices.  The distinctive place, role, and freedoms of groups, associations, and institutions are often overlooked.  This pattern is consistent with the widespread assumption that, because the individual religious conscience is and must be free, religion itself is entirely private.  However, an understanding of religious faith, and religious freedom, that stops with the liberty of conscience, and neglects institutions and communities, will be incomplete.  And, so will the legal arrangements that such an understanding produces.

Indeed, it could be that the Supreme Court’s Religion Clauses doctrine is famously confused and confusing, not because religion is inherently “divisive,” not because scholars disagree about the content and relevance of the First Amendment’s original meaning, and not because that doctrine is the product of changing groups of judges, appointed by Presidents of different parties, with a range of values and commitments.  Instead, it could be that our constitutional doctrine and our thinking about religious freedom under law do not reflect, capture and translate very well the importance of particular institutions in the constitutional order and to the values that the First Amendment should serve.

Now, how does the infrastructure of religious freedom work?  How, exactly, do churches (and the like) shore up (and not just find shelter within) the freedom of religion?  It is clearly not by supplanting the freedom of the individual religious conscience as the ultimate beneficiary of religious freedom under law.  Quite the contrary.  As I have spelled out in more detail elsewhere, the existence and independence of religious institutions long served, and is still needed today, as – in John Courtney Murray’s words – the “social armature to the sacred order,” within which the individual human person could be “secure in all the freedoms that his sacredness demands.”

Of course, the days are long gone – and 2020 will not bring them back – when we could speak of the Church as the chief rival to, check upon and sometimes close partner with the State.  Today, in our religious-freedom doctrines and conversations, it is likely that the independence and autonomy of churches, and of religious institutions and associations generally are seen as deriving from the free-exercise or conscience rights of individual persons rather than as providing the basis for the exercise of those rights.  (Indeed, many would say, and perhaps celebrate the fact, that institutions are becoming less important to our religious, or “spiritual,” lives.)  It remains the case, though, that the existence and independence of religious institutions are needed to – quoting Murray again -- “check the encroachments of secular power and preserve [the] immunities” of our “basic human things.”  Murray was right to worry that the individual conscience, standing alone, is not up to the task of creating and sustaining the conditions necessary to ensure religious freedom; it is not, as he put it, “equal to the burden” of serving as the “sole authentic mediator of moral imperatives to the political order” and the “keystone of the modern experiment in freedom.”  An institutional approach to the Religion Clauses – an approach that is consistent with the reality of increasing pluralism and should therefore be attractive to progressives --  would recognize this worry, and have responding to it as its chief aim.

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Richard W. Garnett is Associate Dean and Professor of Law at the University of Nortre Dame Law School. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Paul Horwitz (The University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").
 

Religion and Division

Crosspost from Balkinization

A particular narrative has, for many years, informed and shaped both our thinking about the meaning and purpose of the First Amendment’s no-establishment-of-religion rule and the construction-by-courts of the doctrines, standards, and tests used to enforce that rule. The narrative goes something like this: Europe suffered through many years of war, persecution, and political turmoil, in large part because of the failure to appropriately separate church and state, religion and politics. As Madison put it, in the Memorial and Remonstrance, “[d]uring almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” Our Founders learned from this experience, the narrative goes, and so sought to guard against “divisiveness” in politics by privatizing religion.

Obviously, there is something to this narrative. As I have tried to explain in more detail elsewhere, though, I believe it is a mistake – one that for several decades misshaped our constitutional doctrines and debates and one that “progressives” and “conservatives” alike should want to see abandoned well before 2020 – to think that observations or predictions of “divisiveness” should have any significant place either in the judicial enforcement of the no-establishment rule or in citizens’ participation in what Jack Balkin calls the broader “tradition of redemptive constitutionalism.” After all, and to quote Madison again, “[l]iberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”

Noah Feldman and Bill Marshall contributed thoughtful essays to The Constitution in 2020 on the challenge of “protecting religious diversity” through our Constitution. I agree with much – most, in fact – of what they wrote, notwithstanding the fact that the “constitutional vision” developed and defended in the volume is, for the most part, not my own. This short comment is not intended as a criticism, or even a direct response, to their essays. It was, instead, merely prompted by what seemed to me to be each scholar’s embrace of the idea that the First Amendment was designed to be, and should be, understood and enforced with an eye toward avoiding or soothing “divisiveness.” (Professor Feldman, for example, follows Chief Justice Burger – and, more recently, Justice Breyer – in stating that a no-money-to-religion rule can be justified “on the ground that debates over government funding are likely to lead to political polarization – an especially great risk in our vibrantly diverse society.”)

In my view, though – and in John Courtney Murray’s words – we should “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.” Pluralism, Murray thought, “is the native condition of American society” and the unity toward which Americans have aspired – e pluribus unum – is a “unity of a limited order.” As I see it, those who crafted our Constitution believed that both authentic freedom and effective government could be secured by harnessing, rather than homogenizing, the messiness of democracy.  It seems both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people and, perhaps, best regarded as an indication that society is functioning well, and engaging in precisely the “larger dialogue” and “conversation” for which The Constitution in 2020 calls.

Roberto Unger suggested, more than a decade ago, that one of the “dirty little secrets of contemporary jurisprudence” is its “discomfort with democracy.” And, in a similar vein (though not with regard to the Establishment Clause), Rick Pildes has voiced the worry that “in the political realm, judges and others cling . . . tenaciously to the fear that too much politics, or too competitive a political system, will bring instability, fragmentation, and disorder.”  In my view, our thinking about religious liberty and church-state relations, and about the role of courts in protecting that liberty and policing those relations, should not – today or in 2020 -- be affected or colored by this “fear.”
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Richard W. Garnett is Associate Dean and Professor of Law at the University of Nortre Dame Law School. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Paul Horwitz (The University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

The Necessity and Peril of Ethical History

Crosspost from Balkinization

Distinguish three forms of historical argument in constitutional theory: as positive authority, as practical experience, and as national ethos.

 
    (1) History deployed as positive authority purports to settle the meaning of clauses or doctrines by reference to things that happened in the past.  For example, the way language was commonly used in 1789 might be adduced to establish the meaning of “religion” in the First Amendment, and the practices of many different states over time might be adduced to determine whether a particular liberty is fundamental for the purposes of substantive due process. 

    (2) History deployed as practical experience aims to help decisionmakers translate normative constitutional visions into effective institutional arrangements.  It might point out that something taken as necessary is actually contingent; or that something regarded as happenstance has resisted numerous attempts at change; or that different institutions have had differing success in pursuing certain goals; or that an axiom of constitutional wisdom may be an inherited bromide rather than a cogent analysis of how government operates. 

    (3) History deployed as national ethos attempts to tell a story about the constitutional values of the American People.  We are a people who prize democracy, or federalism, or who fought a terrible Civil War to end slavery, or whose institutions presuppose a Supreme Being.

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Of these three forms of argument, history as national ethos is often the most powerful.  It sometimes comes cloaked as one of the other kinds: many historical arguments that seem to sound in positive authority or practical experience are better understood as sounding in ethos.  They do their work if they persuade their audiences to accept not just the particular historical propositions for which they are offered but a general and value-laden impression about the meaning of American history.  Much originalist argument is best understood as argument about national ethos, inasmuch as it attempts to portray a heroic American constitutional past that supports a particular set of value choices in the present.  Much of what we call “redemptive constitutionalist interpretation” similarly deploys history as ethos.

Successful movements in constitutional politics are good at making historical arguments that sound in national ethos.  I hope that in the year 2020 progressives will stand securely on their versions of the national ethos in the sphere of constitutional politics.  But there is a danger here for scholars who are attracted to the arena of those politics. 

Because American history can be narrated in several different ways that highlight different (and conflicting) values, the interpreter who deploys history as ethos will privilege some values and shunt others aside.  The choice can be made with varying levels of self-awareness, but the narrative offered will always be partial and contestable.  Making those choices is an appropriate activity in politics, including constitutional politics.  But such simplifications are dangerous to the spirit of scholarship, which should embrace complexity rather than repressing it away.  Accordingly, constitutional theorists who work in the academy should beware of presenting their ethical narratives as—to use a phrase advisedly—the law.

This does not mean that good scholarship should not be normative.  It means only that the normativity appropriate to scholarship must be consistent with rendering the world in its complexity.  Where the dominant historical narrative supports undesirable constitutional politics, it is appropriate for scholars to showcase alternatives, thus pointing out that the world is complex and that the dominant narrative is not a necessary framing.  In that spirit, I have previously recommended the development of “mobilizable history” beyond what is conventionally made the source of constitutional argument.  But constitutional theory—or at least academic constitutional theory—should remain aware that any alternative narratives are also partial.  And public officials should strive to remember that complexity when making constitutional decisions now, in 2020, and beyond.

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Richard Primus is Professor of Law at University of Michigan Law School. He will be appearing on Saturday's "Constitutional Theory" panel with Jamal Greene (Columbia Law School, "How Constitutional Theory Matters"), Sophia Lee (University of Pennsylvania Law School, "Administering the Constitution in 2020"), and David Law (Washington University School of Law, "The Failure, and Future, of Constitutional Theory").
 

Two Questions for the Establishment Clause

In different ways, Noah Feldman and William Marshall critique the received liberal wisdom concerning Establishment Clause jurisprudence.  Feldman argues that we should adopt the “no money, no coercion” principle of the Founders.  This means the government should reduce religious groups’ access to public funds through faith-based social service or school voucher programs, but become more tolerant of symbolic, non-coercive public endorsements of religion, such as Ten Commandments displays.  Meanwhile, after surveying the values and shortcomings of secularism, Marshall concludes that government should allow religious groups to receive funding, under certain conditions, but should be diligent in preventing new public endorsements of religion.

Two important practical questions emerge from these pieces.  First, to what extent, if any, should religious groups who perform social services be eligible for public funds?  Second, how should we understand the relationship between symbolic endorsement of religion and coercion?

To my mind, Marshall offers a more compelling answer to the funding question.  There is no reason to think that the Founders’ “no money” admonition was meant to put religious groups at a disadvantage compared to non-religious groups.  As Feldman acknowledges, the Founders feared that taxation for religious purposes violated the conscience of those who believed differently.  But, in a modern welfare state in which taxes fund a wide range of controversial ethical and economic endeavors, equal treatment should guard against religious groups being uniquely excluded from funding.  Feldman recognizes that these changed circumstances might lead us to reach different conclusions than the Founders, but he suggests we should, nevertheless, avoid funding religious organizations because competition for the government’s largesse is likely to result in political polarization.  It is far from certain, however, that excluding faith-based groups altogether will not simply lead to political polarization of a different sort.

Marshall rightly notes that, as long as religious groups are not exempted from generally applicable regulations, and as long as state funding does not go to purely religious activity, there does not appear to be any constitutional problem with government funding religious groups that perform public functions.  President Obama seems to agree.

The most relevant question for the symbolism debate is whether or not the state can be effectively neutral between competing conceptions of the good.  If one believes there is a neutral space the government can occupy, then all public symbolic endorsement of religion should be avoided.  If public endorsement of religion persists, even though a neutral alternative exists, it is reasonable to suspect coercive intentions are at work.  If we conclude, however, that the government cannot be genuinely neutral, there seems no principled way to exclude only religious symbols from the public sphere.  To do so, as Feldman observes, is to discriminate against religious perspectives in favor of non-religious ones. 

Marshall is at least as effective as Feldman in diagnosing the shortcomings of secular neutrality, but his greater concern over the coercive potential of religious symbols leads him to conclude that government should not endorse religion, unless the endorsement is part of a benign and longstanding tradition.  Marshall’s conclusion might seem practically appealing, but his distinction between old and new religious symbolism is problematic.  If the state cannot be neutral, which Marshall concedes, why should religious groups who seek public endorsement be denied the same opportunities available to non-religious groups?  Marshall understandably worries about the coercion that could result if certain religious groups capture government interests and then exclude other perspectives, but he fails to appreciate fully that symbolic endorsement, unlike public funding, is not always a zero-sum game.  Whether enacting a local holiday, hanging a plaque at the courthouse, or displaying an exhibit at a public mall, there are many creative ways for the state to endorse religious symbols without it resulting in chaos or coercion.

The good news here is that we, as progressives, can be friendly to religion without compromising our core principles.  In fact, strict secularism, of the sort Marshall and Feldman dismiss, runs counter to progressive values of equal treatment and respect.  In a happy coincidence, the current political climate is a hospitable one for progressives who are open to religion.  We should embrace this political reality with the knowledge that our constitutional and philosophical principles are safe.

 

Obama's Inauguration: A Progressive Approach to Religion in the Public Sphere?

 

"We know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus – and nonbelievers."
 – Barack Obama’s Inaugural Address, January 2009

Since George Washington invoked “the Almighty Being” in his first inaugural address, prayer has opened America's Presidential inaugural ceremonies.  Recent Presidents -- Republicans and Democrats alike -- have chosen religious figures who have offered broad ecumenical prayers to appeal to the widest range of people.

But, in a departure from the norm, Barack Obama chose voices from extreme ends of the political spectrum and wove them together into a pluralistic patchwork of public religious expression: the first openly gay Episcopalian bishop commenced the festivities, an evangelical preacher known for his opposition to gay marriage offered the invocation, and a veteran civil rights leader delivered the benediction.  At the National Prayer Service the next day, the first female president of the Disciples of Christ gave the sermon, and Muslim, Hindu, Jewish, Protestant, and Catholic leaders offered prayers from their faith traditions. (To see video coverage of the festitivites, click here.)

Never before had an inaugural ceremony embraced such radically inclusive religious representation.  Obama was the first to give a prominent place to Muslims and Hindus, both in the ceremony and his inauguration speech.  (The Bush and Clinton inaugurations were racially diverse but remained almost exclusively Judeo-Christian, prominently featuring Billy Graham.)  Can Obama’s inauguration hold up a picture of a new progressive approach to religion in the public sphere? 

In "Progressives, the Religion Clauses, and the Limits of Secularism" (Chapter 21 in The Constitution in 2020), William Marshall explains that a progressive approach to religion must recognize the limits and values of secularism, the position that government must not use its power to promote or endorse religion.  Marshall argues that secularism has instrumental values: government support of religion demeans the integrity of that religion, harms and alienates other religions, and misuses government resources. 

However, secularism has its limits too, Marshall argues: the secular position that morality can be derived from nonreligious sources is itself a theological proposition that creates its own establishment.  When secularism privileges nonreligious over religious entities, it discriminates against religion and violates equality.  Moreover, secularism runs up against a public culture already replete with religious symbols, names, and references.  It is not only impossible but also hostile and divisive to attempt to strip all religion from the public sphere.  Marshall concludes that both extremes of pro-religion conservatism and anti-religion secularism are harmful.

In his inauguration, Obama appeared to steer between the extremes Marshall sketches out: he heeded the values of secularism and avoided his predecessor’s overreliance on a single brand of conservative Christianity, but he also recognized the limits of secularism and did not restrict or water down religion in his inauguration.  Rather, Obama populated the festivities with multiple religious voices that reflected the nation’s rising religious diversity.  I believe that the use of religion in Obama’s inauguration went beyond merely confirming the importance of the historical role of religion in American history: it played an active role in the evolution of public religious displays from general and minimalist to plural and particular. 

Marshall warns against such an active engagement with religion.  Marshall wants progressives to permit religious vestiges in culture but prohibit the government from new forms of religious reference or displays.  When the government participates in the production of public religious culture, Marshall argues, sectarian interests can capture the state, religious groups will want to seek additional government favor, and the government can become entangled in battles over religious symbols, raising antiestablishment concerns. 

Obama risked all of these dangers in his inauguration – and for the most part avoided them.  Can he continue to engage religion successfully as President – not just in speech but in action too?

Obama’s recent speech addressing embattled religious communities in the Middle East suggests he can. There, Obama recognized both sides as victims and oppressors, and appealed to both sides’ religious commitments in calling them to break cycles of violence. 

 

His speech has been criticized as just that – speech. And yet speech is a necessary first step toward any action.  That first step is always critical and often under-valued: it is the space of the imagination where values are nurtured, horizons are drawn, and capabilities are determined.  Obama works this space well.  His speeches throughout the campaign and in the inauguration reclaimed a national narrative of hope and possibility; now his speech aims to redeem ancient religious narratives soaked in blood.  Radically inclusive speech has the power to bring people to the table and to shape their sense of possibility upon arriving there (journalists have already begun to suggest that there’s an “Obama effect” rippling throughout other parts of the globe). Once at the table, the real work begins – negotiating concrete differences, pounding out policy proposals, and taking action that causes real change.

Can Obama bring enough people to the table to deliver results?  Can he engage religion and avoid the danger Marshall outlines -- government entanglement with religion at home and abroad?  The jury is still out, but the signs are promising.

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