Friday, June 24, 2022

The Establishment Clause Has Been Dead For a Long Time

Guest Blogger

Stanley Fish

This week in Carson v. Makin,  the Supreme Court ruled that the state of Maine violated the Constitution when it banned the use of public funds to support children attending religious schools. Chief Justice Roberts, writing for the majority, declared that  the denial to religious parents of a benefit accorded to non-religious parents is clearly “a discrimination against religion.” In  dissent , Justice  Sonia Sotomayor warns that “Today the court leads us to a place where separation of Church and State becomes a constitutional violation. “ In fact we have been at that place ever since the first high profile Establishment Clause case , Everson v. Board of Education, was decided in 1947.  In Everson the Court considered a New Jersey statute authorizing the reimbursing of the funds spent by parents to bus their children to  parochial schools. On its face, this policy is a  clear violation of the Establishment clause which says, basically, that no act of government should  have the effect of turning the state into an instrument of religious purposes.  Using public monies to aid religious institutions has always been an example of the kind of activity the clause forbids. Here is James Madison making just that point in 1785: No citizen should be compelled to “contribute  three pence only of his property for the support” of any religious establishment. Even so small an amount should provoke “alarm at the first experiment on our liberties.”

In his majority opinion, Justice Hugo Black seems to be following Madison’s lead. He declares, “No tax in any amount, large or small, can be levied to support any religious activities or institutions,” and  invokes Jefferson’s insistence on a “wall of separation between Church and State.” But then, in an instant, he breaches the wall and affirms the challenged statute. Why? Because, he says, it would be wrong to “prohibit New Jersey from extending its general state law  benefits to all its citizens without regard to their religious beliefs.” What Black has done, without announcing it, is substitute for the Establishment Clause question-- does the disputed policy materially aid religious interests? --the Free Exercise Clause question-- does the policy treat all its citizens equally or does it disadvantage religious citizens just because they are religious? The answer to that question is, of course the strong application of the Establishment Clause disadvantages religious citizens and their interests ; that what it’s for-- to deny to religious citizens the opportunity to fashion the laws of the state  in  a way that enacts their beliefs.   The beliefs of other citizens are under no such limitation. If you are a socialist, or a libertarian, or a utilitarian or a social justice warrior, or even a Marxist,  you have every right to work politically with the goal of having state institutions reflect your views . But you can’t , according to the Establishment Clause,  do that if the views you wish to see encoded in law are religious ones.

Why not? A full answer to that question would require a deep historical investigation into the fears that animated the founders’ action.  We can, however, point to some effects the they likely wanted to prevent—political divisiveness rooted in sectarian differences, religious tests for the holding of office, the marginalization and stigmatization of minority faiths, the effacing of the distinction between public  education and religious education,  and, most important of all,  the emerge of a two tiered system of legal enforcement in which secular citizens are bound by generally applicable laws and religious citizens are not because they claim allegiance to the higher law of their faith.

But that feared condition is exactly what the Free Exercise Clause demands if you include in the injunction against burdening free exercise  the burden imposed by laws that don’t take your beliefs into account, or, worse, forbid you from living out those beliefs out if , for example, acting according to them would violate a state’s anti-discrimination laws. Taken seriously, the Establishment Clause says to religious persons, you can believe and profess and practice your faith so long as doing so does not interfere with the protocols of the secular state . But from the perspective of a strong Free Exercise Clause, that limitation is a restriction on a constitutionally mandated right. Indeed, from the perspective of a strong Free Exercise clause, the Establishment Clause, insisting as it does on the separation of Church and State, is unconstitutional.

On its face, this conclusion seems paradoxical . How can a piece of the Constitution be in violation of the Constitution? The paradox is only extended when we realize that exactly the same argument mounted from a strong establishment Clause position would end up declaring the Free Exercise clause unconstitutional . Although they appear in the same sentence, the two clauses are locked in a death struggle. Neither can be asserted in its maximum force without running up against the maximally asserted force of the other. The Court has long recognized this unhappy fact and move to deal with it by applying –actually inventing-- the doctrine  of “play in the joints.”  “Play in the joints”, invoked in the Maine decision, means that  a space of accommodation exists between the two clauses when neither is asserted so strongly that it denies wholly the claim of the other. Let’s operate in that space and avoid a direct confrontation between the Establishment Clause interest—the maintenance of the secular state—and the Free Exercise clause interest—the protection of religious observance. This of course means that the issue has become a political one, a matter of finding a point of balance rather than adhering to a principle; and the balance is likely to be struck in favor of the interest that has secured the most political/popular support. Since Everson that interest, with only a few exceptions like Employment Division v. Smith, 1990, has been identified with free exercise and the result has been that in the last seventy five years the courts have authorized the expenditure of public funds to purchase educational supplies, to pay teachers’ salaries, to construct parochial school buildings , to support frankly evangelical magazines on campuses, to fund vouchers for sectarian school tuition, in short to do anything that might be done for a public secular school. In the cases so decided , the Establishment Clause has been invoked only to be dismissed or argued out of existence. The Establishment Clause has been dying for decades. Carson v. Makin is only a final nail in the coffin.

Stanley Fish is Professor of Law at Florida International University College of Law and a Visiting Professor at the University of Texas School of Law. You can contact him at 

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