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 cnacken1@swarthmore.edu.
[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.
[26] https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf. The decision was 6-3.
[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).
[30] Brief of respondent A. Pender Makin
in opposition, filed 5/21/21; https://www.supremecourt.gov/DocketPDF/20/20-1088/179829/20210521115727220_ Brief%20in%20Opposition%2005%2021%2021.