Sunday, July 31, 2022

Stiff Joints Don’t Bend Anymore

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.


Carol Nackenoff


there is room for play in the joints’ between what the Establishment

Clause permits and the Free Exercise Clause compels.[1]


It is an honor to participate in this celebration of Sandy Levinson’s 40 years at the University of Texas at Austin. Sandy’s enthusiasm for interacting with smart undergraduates led him to accept my invitation to serve as an examiner for my Constitutional Law honors seminar at Swarthmore, and he has also been Swarthmore’s Constitution Day speaker.


In Wrestling with Diversity (2003), Sandy Levinson is especially concerned with the arrangements through which Americans might interact peaceably with other Americans with religious and cultural worldviews different from their own. Even in the founding era, a number of influential people thought those in the new United States were diverse enough to be worrisome—there were those German-speakers in Pennsylvania; there were Quakers, Catholics, and Jews; people living in southern states and those on the western frontier were seen as having such different values from those in the northern Atlantic states that it was hard to imagine how they might form a single union.[2] Sandy argues there was no singular “People” in whose name the Constitution of 1787 was created. Since 1787, more elements of the population have been included in the U.S. citizenry, and the nation is comprised of a much more diverse array of people (religiously, culturally) than at the founding. Sandy searches for solutions that might achieve “some kind of unum among the pluribus of American society.”[3] Toward this end, he finds exposure to other worldviews necessary—secular perspectives for those in insular religious communities and diverse religious perspectives for those who live in highly secular ones.


Today, this looks like an increasingly tall order, and the Court might even be impeding, rather than aiding, such goals. A focus on recent constitutional struggles illuminates some difficulties and stakes in wrestling with religious diversity and diverse views about the place of religion in the public realm. The Court has weighed in on quite a few blockbuster religion clause cases since Wrestling was published. Not only are Establishment and Free Exercise Clause cases favorites on the Roberts Court’s docket, but many cases involve their intersection.

Sandy foresaw looming problems where the Establishment and Free Exercise Clauses intersect. As Locke v. Davey appeared on the Court’s docket, he noted: “It may be that the most important future litigation will concern . . . attacks on state constitutional prohibitions of aid on the ground that they constitute a denial of the ‘equal protection of the law’ protected by the Fourteenth Amendment.”[4] The Court talks increasingly about free exercise and denials of free expression in conjunction with the Establishment Clause, and as we see in Carson v. Makin, challengers have been trying to introduce the equal protection argument that states that withhold funding from religion organizations unfairly discriminate against religion (and religious individuals). Justice Rehnquist, in his 1985 Wallace dissent disavowing Lemon, foreshadowed a shift in this direction: “[Madison] saw the [First] Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion.”[5][6] Justice Thomas’s plurality opinion in Mitchell v. Helms (2000) stands as a significant development in the Court’s views.7 Any program that excludes religious schools or entities from public benefits shows a marked absence of neutrality between religious and secular spheres. In his Mitchell dissent, Justice Souter saw a break with doctrine “unequaled in the history of Establishment Clause interpretation,” appearing to substitute “even-handedness neutrality and in practical terms promote it to a single and sufficient test for the establishment of constitutionality of school aid”:


"[I]f 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. . . ."[7][8]


Now, a post-Lemon reading of the Establishment clause exists in conjunction with greater solicitousness for free exercise claims, apparently requiring states to do more to support religion if they are not to burden free exercise. Finding free exercise violations more readily than did its predecessors, the Roberts Court elides the belief/practice distinction dating back to Reynolds.9 Requiring closely-held for-profit corporations to provide no-cost contraceptives to female employees under the Affordable Care Act places a high burden on the owners’ free exercise, in violation of the Religious Freedom Restoration Act.[9] The City of Philadelphia violates the free exercise clause by denying Catholic Social Services a religious exemption from the City’s nondiscrimination policy when CSS refuses to place foster children in homes of gay couples.[10] Religious business owners who refuse services to gay couples that they provide to others have increasingly potent free exercise claims, and possibly legally cognizable compelled speech complaints.[11] The state is punishing free exercise, even when it does not criminalize or compel worship or belief, when Trinity Lutheran Church must choose between “participat[ing] in an otherwise available benefits program or remain[ing] a religious institution.”[12]


In Locke (perhaps surprising Sandy), Rehnquist wrote an opinion joined by O’Connor and the liberals, finding enough ‘play in the joints’ that the State Constitution which explicitly prohibits state money from going to religious instruction, does not violate the free exercise clause; the program in question declines to fund religious activity (here, pastoral training). It seems that the Court is willing to compel states to spend money on religious organizations if they spend money for nearly any kind of benefit programs that reach the hands of private entities. It is not clear whether or for how long Locke will remain good constitutional law—it is now confined to the case of pastoral training, and the attempt to distinct status from activity is over.


Recent Roberts Court cases dealing with mini-Blaine Amendments are fascinating arenas of combat. These state constitutional amendments (or provisions in new state constitutions) largely date from the latter decades of the 19th century and bar the use of taxpayer money to fund religious entities.[13] Three-quarters of the states had—and most of these continue to have—such amendments on the books. The original impetus for Blaine Amendments came largely from anti-Catholicism; many citizens felt that schools funded by public monies should not be indoctrinating students in the Catholic faith. Amar sees the transformed Establishment reading, too, as a legacy of former federal territories; upon becoming states, they were inclined to bind themselves to the same antiestablishment language found in the national Constitution.[14] Changes in federal Indian policy were also influenced by this shifting sentiment. Grant’s Peace Policy, conceived in the late 1860s as a means of supplanting corrupt Indian agents, had involved actively reaching out to religious organizations, including Catholic ones, to supervise reservations, educate, and Christianize Native Americans.[15] Catholics took good advantage of the opportunity. By the last years of the century, sentiment that funneling public funds to religious schools violated separation of church and state became so pervasive that the federal government terminated contracts with religious schools on reservations (1890) and Congress soon cut off funding for these schools altogether.[16]


When Thomas Jefferson referred to the First Amendment religion clauses as “building a wall of separation between Church & State,” he wanted to make sure that denominations and their leaders would have to compete for adherents in the marketplace of ideas, free of any secular support.[17] But if the federal government was barred from establishing a state religion, Jefferson did not see the constitutional prohibition extending to the states. In Espinoza v. Montana Department of Revenue (2020), the majority emphasized the manner in which early state laws encouraged government support of religious schools.[18] If the Establishment Clause did not require extension to the states (as Amar argues), nevertheless, by the late 19th Century, this is how states came to read it.[19] The popular voice effectively amended the founding document, and this Establishment Clause reading informed the Court’s Everson opinion in 1947.[20] But the recent Court’s textualists were having none of that.


The Supreme Court now sees itself correcting an erroneous and artificial barrier between church and state, despite the federalism proclivities of most of the conservative members of the current Court. The Montana legislature established a program granting tax credits to those who donate to organizations awarding scholarships for private school tuition, and the state Department of Revenue promulgated a rule prohibiting families from using the scholarships at religious schools. This was consistent with the Montana Constitution’s ban on government aid to any school “controlled in whole or in part by any church, sect, or denomination.”[21] To eliminate discrimination against those seeking to use the scholarship program to attend religious schools, the Montana state court eliminated the scholarship program altogether, leaving no one in Montana with access to these funds.[22]


Can states withhold money from religious organizations without disfavoring religion and violating the free exercise clause? Chief Justice Roberts, writing for the Court in Espinoza, announces: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”[23] Justice Sotomayor, dissenting, reads the Espinoza majority’s decision to say that the Constitution requires state governments to provide public funds directly to a church.


In the run-up to Locke, Sandy wrote that his current view was “that the questions raised regarding both aid in general and the differentiation between public and church-related schools are matters for political resolution and that the Constitution does not speak with sufficient clarity to justify judges stepping in to offer their own solutions.”[24] Recent rulings on the interface of

Establishment and Free Exercise raise a question of whether there is (and should be) room for democracy in the current Court’s reading of the religion clauses. Is the citizenry “free to reject proffered judicial interpretations in favor of what their own intelligence tells them the Constitution means,” which would be a more ‘protestant’ alternative to judicial supremacy, Levinson asks?[25] In this domain, it seems not. Bluntly, the Roberts Court seems to venerate state prerogatives and the democratic process when it comes to countenancing new restrictions on voting rights and permitting state legislatures free rein in redistricting. But not here.


It now seems apparent that the states lack almost all independent authority to interpret the interface of the Establishment and Free Exercise clauses. By so narrowly constricting state authority to work out the ‘play in the joints’ between the Establishment and Free Exercise clauses, the Court expands its own authority. It makes the Constitution more rigid in an arena in which the text does not draw such clear lines, and in which interpretation and practice have changed over time. State Blaine Amendments now look unenforceable. Some (including Justice Alito in his Espinoza concurrence) could conclude this is not a terrible thing since these amendments were borne of animus.


The unfolding drama continued on June 21, 2022, with the Court’s decision in Carson v. Makin.[26] Although Maine could claim James G. Blaine (1830-1893), that state is one of twelve that did not pass a Blaine Amendment. Yet a forty-year-old statute barred public funds from being used at schools that provide religious instruction. Not all school districts in this sparsely populated state have secondary schools; students go to other districts or to private secondary schools and can use public funds to do so—as long as the private school chosen is not sectarian.[27] This sets up at least a possibility that the state would treat different religious schools differently based on their evaluation of how religion permeates the school’s curriculum.[28] Maine insisted that they need pay only for the equivalent of a secular education. Challengers sought to overturn any distinction between status and use, but the Court, basically doing so, declined to overturn Locke since training of clergy was the issue there. Challengers also invoked the equal protection clause, as Sandy long ago envisioned: they claimed unconstitutional discrimination on the basis of religion; the law made it difficult for a certain class of individuals to access government aid. The majority opinion, written by Justice Roberts was, however, based in the Free Exercise Clause, finding sufficient the reasoning in Trinity Lutheran and Espinoza; Maine’s prohibition could not withstand strict scrutiny. The dissenters noted the absence of any consideration of the Establishment Clause and pointed up the increased likelihood of religious strife when the state promotes religion in its public school system.[29]


Trinity Lutheran Church, Espinoza, and now Carson are undeniably nationalizing moves by the Court in an arena where there has previously been some room for state citizens to express their desire that taxpayer money not flow to religious organizations. Will this trajectory lessen, or deepen, religious conflict in the United States? Bangor Christian Schools, which must now be funded if any money goes to private schools, believe God ordains distinct spiritual functions for men and women; the husband is to lead the home and men are to lead the church; the curriculum seeks to refute the teachings of Islam and develop a Christian framework for setting and executing foreign policy.[30] Sandy sees a Court that “has remained wholly unrepentant with regard to its claims of interpretive authority. Must this trajectory be understood in part as a conservative Court that is reveling in its power, and that seems inclined to the restoration of conservative Christian values in the public sphere as a path to unity amid diversity?


Carol Nackenoff is Richter Professor of Political Science Emerita at Swarthmore College. You can contact her at

[1] Trinity Lutheran Church of Columbia v. Comer, 582 U.S. ___ (2017), slip opinion at 6, quoting Locke v. Davey, 540 U. S. 712, 718 (2004); Walz v. Tax Commission, 397 U.S. 664, 669 (1970).

[2] Cecilia M. Kenyon, “Men of Little Faith,” William and Mary Quarterly 12, no. 1 (1955), 7 writing of the antifederalists.

[3] Levinson, Wrestling with Diversity. (Durham, NC and London: Duke University Press, 2003), 93.

[4] Levinson, Wrestling, 122. Locke v. Davey, 540 U.S. 712 (2004).

[5] Wallace v. Jaffree, 472 U.S. 38, 98 (1985).

[6] U.S. 793, 837, 838 (2000), where O’Connor and Breyer, concurring in the judgment, point out the breathtaking scope of the plurality’s novel reading of neutrality, the rejection of the distinction between direct and indirect aid, and that “the plurality’s approval of actual diversion of government aid to religious indoctrination is in tension with our precedents.”

[7] Souter, J., dissenting, Mitchell v. Helms at 900, quoting opinion of the Court at 810.

[8] U.S. 145, 162, 166, 167 (1878).

[9] Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014)

[10] Fulton v. City of Philadelphia, 593 U.S. ___ (2021); sidestepping an invitation to overturn Employment Division Department of Human Resources of Oregon v. Smith; the Court found in Fulton that the City’s nondiscrimination policy did not meet the definition of a generally applicable law under Employment Division because of the opportunity for administrative discretion.

[11] See Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. __(2018). The compelled speech issue comes up in the creation of cake art. See 303 Creative LLC v. Elenis, slated for the Court’s 2022 Term.

[12] Trinity Lutheran Church v. Comer, 582 U.S. __(2017), slip opinion at 10. Another thumb on the scales on the side of free exercise may be seen again this term when Kennedy v. Bremerton School District (21-418) is decided.

[13] A federal amendment introduced by James G. Blaine in the House of Representatives in 1875 stipulated that “No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

[14] Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven and London: Yale University Press, 1998), 248-252.

[15] Francis Paul Prucha, American Indian Policy in Crisis: Christian Reformers and the Indian, 1865-1900 (Norman:

University of Oklahoma Press, 1975), Chapters 1 and 2. Carol Nackenoff with Allison Hrabar, “Quaker Roles in Making and Implementing Federal Indian Policy: From Grant’s Peace Policy through the Early Dawes Act Era (1869-1900).” In Ignacio Gallup-Diaz and Geoffrey Plank, ed., Quakers and Native Americans (Leiden: Brill Academic, 2019), 271-292.

[16] Prucha, American Indian Policy in Crisis, 308-309, 318.

[17] Thomas Jefferson, Letter to the Danbury Baptist association, January 1, 1802. See also Garry Wills, Under God:

Religion and American Politics (New York: Simon & Schuster, 1990), Chs. 30-32. It was Roger Williams who invoked the imagery of a “hedge or wall of Separation between the Garden of the Church and the Wildernes of the world,” seeking to keep the state from meddling in and corrupting the church.

[18] Espinoza v. Montana Department of Revenue, 591 U.S. ___(2020), slip opinion at 14.

[19] Amar, Bill of Rights, 44-45, 246-254.

[20] Everson v. Board of Education, 330 U.S. 1 (1947), a case that breached the wall it evoked by upholding taxpayer paid busing of students to parochial schools.

[21] Espinoza v. Montana Department of Revenue, 591 U.S. ___(2020).

[22] Espinoza, dissent by J.J. Ginsburg and Kagan, slip opinion @ 2, 3, 4. As a result, several dissenters pointed out the Court decided an issue not properly before it.

[23] Espinoza, slip opinion at 20.

[24] Levinson, Wrestling, 123.

[25] Sanford Levinson, “Our Papalist Supreme Court: Is Reformation Thinkable (or Possible)?” In Law and the Sacred, ed. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (Stanford, CA: Stanford University Press, 2007), 113.

[27] In 1982, the Maine legislature sought to codify a 1980 ruling by the state attorney general and excluded schools providing religious instruction.

[28] Sandy notes that the Court has made no real effort to define what religion is and perhaps needs to do so. I note that the Court has studiously avoided making judgments about what activities or practices are central to a religion, yet the Court has been far more protective of mainstream religions and their practices than of “fringe” religions.

[29] Justice Breyer dissent, in which Justice Kagan joined. Justice Sotomayor joined except for Part-B, which included the religious strife point (she also penned a separate dissent).

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