Tag Archives: Establishment Clause

Meadors, “American Public Religion in Frankfurter and Scalia Opinions”

This November, LFB Scholarly Publishing will release “American Public Religion in Frankfurter and Scalia Opinions” by David C. Meadors (Pastor at Broadus Memorial Baptist Church, Charlottesville, VA).  The publisher’s description follows:

Meadors demonstrates weaknesses in the originalist methodology for interpreting the religion clauses of the First Amendment. He concludes that even though courts have an important role to play in protecting religious liberty via the First Amendment this protection needs supplementation by robust advocacy among citizens and mediating institutions in the democratic process. His thesis is that Felix Frankfurter and Antonin Scalia found different forms of American public religion constitutional in their religion clause jurisprudences. Both applied originalist methodology in their religion clause opinions, but came to different conclusions. More specifically, Frankfurter focused primarily on the views of Thomas Jefferson and James Madison whereas Antonin Scalia has looked more broadly to the views and practices of John Adams, George Washington, and John Marshall in addition to Jefferson and Madison.

Cook, “First Amendment Religious Liberties: Supreme Court Decisions and Public Opinion, 1947-2013″

This month, LFB Scholarly Publishing releases “First Amendment Religious Liberties: Supreme Court Decisions and Public Opinion, 1947-2013” by Tracy L. Cook (Central Texas College). The publisher’s description follows:

Cook analyzes the relationship between Supreme Court decisions and public opinion concerning First Amendment religious liberties. Overall, the Court has issued opinions consistent with public opinion in a majority of its decisions dealing with the First Amendment’s religion clauses, with a level of congruence of almost seventy percent when a clear public opinion expression is present. She also provides a new perspective for understanding the long and contentious debate about prayer in public school by identifying an area of agreement between the Court and public opinion that has not received much attention.

“Constitutional Contraction: Religion and the Roberts Court”

I’ve posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here’s the abstract:

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. 

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly. 

Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.

Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.

Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Comments are welcome!

Originalist Fusionism

Here’s something not right down the law and religion fairway, but certainly somewhere in the first cut. The success of original meaning in displacing original intent as the basis for originalist jurisprudence is well known. Original meaning is widely thought to avoid some of the methodological difficulties associated with original intention. And several theorists believe that original meaning is both more politically legitimate and truer to the activity of legal interpretation than original intention.

Yet recently, something of an intentionalist revival has come on the scene. Note that the revival is almost always inclusive of original meaning: the claim is not the mirror image of the new originalist claim–i.e., that original meaning should displace original intention completely. Instead, it is that the exclusion of original intention entirely either leaves originalism incomplete or has had some other ill effects on originalism. The new intentionalism therefore could be plausibly described as a fusionist project–bringing together considerations of original meaning and original intent as both relevant.

Exhibit A: Donald Drakeman’s and Joel Alicea’s work on the limits of the new originalism. What happens when originalist materials point to two or more equally persuasive original public meanings?  The authors discuss a case from 1796 — Hylton v. United States — which involved the constitutionality of a federal tax on carriages. The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South. The case pitted Hamilton against Madison (who had argued against the tax’s constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and “what to do when the best evidence of contemporary usage points in two directions.”  The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources — dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the “foreign Lexicons” of “consolidated” as opposed to “confederated” governments, commentaries, poems, ratification materials, congressional debates, and so on. Hamilton won the day, arguing that Adam Smith’s definition of a tax in The Wealth of Nations “was probably contemplated . . . by [the] Convention.”  The authors note this as an example of original intentions, and they also emphasize that the three opinions in the case all focused to varying degrees on framers’ intentions.  The reason for this focus is best summarized by Justice Paterson: “the natural and common, or technical and appropriate, meaning of the words, duty or excise, is not easy to ascertain.”  And the authors go on to argue that recourse to original intent is a perfectly reasonable move when original meaning yields equally plausible but conflicting understandings.  The authors call it original intent as tiebreaker: “when the meaning must be sought outside the corners of the constitutional text, why not opt for answering the question ‘What were the framers actually trying to accomplish in using this language?’ rather than letting Samuel Johnson . . . or Hans-Georg Gadamer . . . make the final determination?” And it might be quite common that originalist materials would point to two or more plausible meanings of a particular clause. See, for example, the Establishment Clause.

Exhibit B: Steve Smith’s new post at the Liberty Law blog on the shortcomings of the new originalism. Smith focuses on the new originalism’s complete dissociation of original meaning and original expected applications, which he argues has had the effect of depriving originalism of some of its central political virtue. He writes:

At bottom, after all, the basic idea was, and is—or should be—that “We the People” are entitled to govern ourselves. And for that to happen, we need a process in which we can intelligently decide whether or not to enact a constitutional provision on the basis of an understanding of what the provision will and will not do—of what its consequences will be. To be sure, the People can’t reasonably expect to foresee every little contingency and every specific application of our enactments. But if a constitutional provision ends up having far-reaching consequences that its enactors never intended—that they might have found shocking, that if foreseen might have led them not to enact the provision at all—then not only democracy but also basic rationality are thereby betrayed.

We are then being governed, in the name of the Constitution, by something that “We the People” didn’t think we were approving and perhaps never would have approved. Adopting a constitutional provision becomes less like intelligent, rational self-governance and more like throwing darts in the dark: we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean.

Smith suggests at the end of the piece that it might be good for “some new movement to emerge devoted to the true criterion for constitutional interpretation,” and he refers to an unpublished paper of his dealing with a “maker-meaning nexus.” I haven’t read the piece, but it sounds very much like a kind of originalist fusionism. One might even say that something like original expected applications (drawn from intentionalist sources) could be used as a side-constraint on original meaning. That side-constraint could operate only in cases of ambiguity (a la Alicea/Drakeman) or as a general restraint on it.

I could list other exhibits, and there are other important intentionalist champions out there, probably none more interesting that Richard Ekins (though my tentative sense, subject I hope to reader correction, is that Professor Ekins’s writing has not taken a position on intentionalism in the originalism debates). But I wonder whether originalist fusionism (or originalist fusionisms of various kinds) might be on the way.

Second Circuit Holds that National Motto, “In God We Trust,” on the Currency is Constitutional

In a decision last week, the U.S. Court of Appeals for the Second Circuit joined four other circuits (the D.C. Circuit, the Tenth Circuit, the Fifth Circuit, and the Ninth Circuit) in upholding the constitutionality of two federal statutes that require that the national motto, “In God We Trust,” be placed on all coinage and paper currency. The court affirmed the dismissal of the complaint by the district court (Baer, J.).

The panel noted that there was some dispute and confusion about the proper Establishment Clause standard to apply in the case. It settled on the Lemon test, which is the “prevailing test in this circuit.” How odd that there is a “prevailing test” in a circuit that may well have been rejected by a current majority of the Supreme Court. And yet while the Second Circuit applied a test whose viability is in question, it also deferred to repeated Supreme Court dicta on the issue, indicating that the motto and its inclusion on the currency is a reference to our religious heritage and therefore satisfies the “secular purpose” and “primary secular effect” prongs of Lemon. The court then saw fit to rely on statements in several dissenting Supreme Court opinions. Even Justice Stevens in his Van Orden v. Perry dissent believed that “In God We Trust” was ok as “an appendage to a common article of commerce” (not quite sure what that means). And Justice Brennan once stated in dissent that “In God We Trust” did not violate the Constitution because the words have lost “any significant religious content” through “rote repetition.” That, too, was claimed by the panel to be persuasive.

The plaintiffs also brought free exercise and RFRA claims. These were rejected as well.

Berger on Town of Greece and Praying While Smoking

The inimitable Peter Berger has this column on Town of Greece v. Galloway. Here’s the cleverly charming beginning:

In a Benedictine monastery there is a chain smoker. He smokes all the time. He smokes during work, during meals, even during communal prayers. He says that he would become seriously ill if he stopped. The abbot is solicitous about the smoker’s addiction, but this has become such a scandal that he feels constrained to consult the relevant authorities in Rome. He asks, “May one smoke while one prays?” Rome doesn’t act quickly, but after a few months the answer comes back –“No, one may not.” It so happens that a Jesuit is visiting on the day the reply from Rome arrives and the abbot tells him the story. The Jesuit thinks for a moment, and says: “You asked Rome the wrong question. What you should have asked—May one pray while one smokes?”

One could say that, in a decision of May 5, 2014, the Supreme Court of the United States was guided by Jesuit logic.

Bloomberg Law Interview About Town of Greece and Elmbrook School District

I was interviewed today on Bloomberg Law about the petition in the Elmbrook School District decision out of the Seventh Circuit and the possible effect of the Supreme Court decision in Town of Greece. You can download the podcast here. My segment starts at about the 7.30 minute mark.

Want to Understand the Possible Implications of the Legislative Prayer Case?

Then you should read these two posts by Kevin Walsh.

In the first post, Kevin explains the way in which Justice Kagan’s dissent lines up in important ways with the views of Judge J. Harvie Wilkinson in his opinion for the Fourth Circuit in Joyner v. Forsyth County (Justice Kagan explicitly relies on some language in Joyner, but the similarities in outlook run deep).

The second post discusses a pending cert. petition–the Elmbrook School District case out of the Seventh Circuit in which Judges Easterbrook, Posner, and Ripple authored dissents from the court’s en banc opinion–and what might happen to it in light of the Court’s holding in Greece.

Both issues are discussed at length in the article that Kevin and I wrote together–Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory (see in particular Parts I(B) and II(C)). You should read that too!

Justice Thomas’s Concurrence in Town of Greece

One last expository post on Town of Greece v. Galloway, this one on Justice Thomas’s concurrence, which was joined by Justice Scalia as to Part II alone. There has already been a fair quantity of commentary on the case, but little of it has focused on Justice Thomas’s concurrence.

The Thomas concurrence is divided into two sections. The first part restates and develops Justice Thomas’s view, first expressed in Elk Grove Unified School District v. Newdow, that the Establishment Clause should not be incorporated against the states because the Establishment Clause represents a protection for the states against interference by the federal government in matters of religion. Like the Tenth Amendment, the Establishment Clause is not a protection for individual rights. The clause’s incorporation was simply assumed, wrongly and without argument, in the Everson case.

Some discomfited attention is being paid to Justice Thomas’s statement that “[a]s an initial matter, the Clause probably prohibits Congress from establishing a national religion.” How could he only say “probably”? But there is an explanation. The citation for this statement is the excellent book, Church, State, and Original Intent, by religious historian (and Center for Law and Religion board member and former Forum guest) Donald Drakeman. Here is Don at 260 of the book:

The strongest evidence from the constitutional ratifying conventions, the amendment proposals, the records of the congressional debates, and the ratification of the Bill of Rights points consistently in one direction: that Congress should be prohibited from establishing a “national religion.” The First Amendment thus succeeded in turning the hotly contested subject of church-state relations–which had already caused legislative battles in the states and would continue to do so virtually in perpetuity–into a “milk and water” amendment by focusing on the one thing no one wanted and everyone could unite against: a “Church of the United States.” There was no need for the various participants to agree on what that meant, and, indeed, interpretive disagreements arose as early as the first few decades, but, for this review of the understanding of the clause at the time it was adopted, there is no body of evidence that supports any more detailed sense of what the language meant to the people who voted for it or to the American public who received it.

There is therefore enormous uncertainty as to what the clause meant as an original matter (this is one reason that original expected applications originalism is so useful as to the Establishment Clause)–uncertainty that is reflected in the very spare historical record that reveals next to nothing about the clause’s historical meaning. Church-state arrangements in the early republic were, as they are now, deeply unsettled and contested, and the Establishment Clause was not intended to settle them. If the clause is read as Justice Thomas reads it–as a federalism provision–then one must make the inference (and it is an inference) that a national church was prohibited, since a national church would present a major obstacle to the freedom of states to decide on their own church-state arrangements. 

Part II of the concurrence assumes that the clause had been incorporated and then argues that what the clause proscribes is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Note that here there is a kind of unity with Justice Scalia’s view of the scope of protection afforded by the Free Exercise Clause. This “actual legal coercion” test–which the Justices distinguish from a “subtle coercive pressures” test (see Lee v. Weisman) involves the exercise of government power “in order to exact financial support of the church, compel religious observance, or control religious doctrine.” It is therefore unsurprising that Justice Thomas and Justice Scalia did not join Part II(B) of Justice Kennedy’s opinion dealing with the type of coercion required to make out an Establishment Clause challenge (assuming its incorporation against the states).

Originalism and Town of Greece v. Galloway

Professor Michael Ramsey has a very good post on the degree to which Justice Kennedy’s opinion for the Court in Town of Greece v. Galloway is (and is not) an originalist opinion. He concludes that it reflects a kind of original expected applications originalism. I have always had more sympathy for original expected applications originalism than most, and the points in favor of using this methodology made by Professor Ramsey seem persuasive to me in this context. At any rate, take note, my Fall ’14 students in Constitutional Theory! A bit from Prof. Ramsey’s fine post:

It’s not (typically for Kennedy) an exclusively originalist opinion, but this is a strong originalist element. My question: is it the right sort of originalism? Answer: yes and no. Kennedy’s principal contention (following Marsh) is that the people who proposed the First Amendment also authorized sectarian legislative prayer, so the Amendment must permit it.

In academic terms, this is a version of “original expected application” – that is, how did the framers of a provision anticipate it affecting existing practices? It is fashionable in academic circles to look down on original expected applications. Under original meaning originalism, the question is: what did the text mean? It’s not, what did some people at the time think it would mean (or, worse, how did some people at the time apply it in practice once it was enacted)? If that’s right, Kennedy is looking in the wrong place – it shouldn’t matter what people thought would happen to legislative prayer, but rather what the text actually meant for legislative prayer.

I share some of this view, but not all of it. So I have some sympathy for Kennedy’s argument. I agree that what ultimately matters is the text, not what particular people (or even everyone) thought of the text. Further, what some people thought of the text may be a poor indicator, because the people cited may have been outliers, or making self-interested arguments. Expected applications must be treated with caution, and doubly so for views expressed after ratification.

At the same time, though, expected applications can be good evidence of what the text actually meant.  The text does not have a platonic meaning apart from what people at the time understood it to mean. If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y. This seems especially true of a phrase (like establishment of religion) that may have been a term of art at the time but whose meaning has become obscured to modern readers. The enacting generation was much closer to the language and substituting our view for theirs seems problematic as a strategy for finding the text’s meaning in their time.

So I think the result in Greece v. Galloway is probably right, for at least some of the reasons Justice Kennedy states. But the analysis remains incomplete. Ultimately, an originalist analysis should tie the original expected application back to an original public meaning of the text (since it’s the latter that is what was enacted). That is, there should be a conclusion as to what the text means (consistent with legislative prayer being constitutional). The Court’s opinion does not make that connection. It’s core conclusion is, whatever the clause means, it must allow legislative prayer. But this does come close to saying that it’s the application, not the text, that matters.

UPDATE: I forgot to note a short, helpful defense of the use of original expected applications originalism in this paper by Professors John McGinnis and Michael Rappaport.