Tag Archives: Establishment Clause

Call for Papers: The Legitimate Scope of Religious Establishment (March 7-9, 2016)

The Fondazione Studium Generale Marcianum in Venice has issued a call for papers for a conference, “The Legitimate Scope of Religious Establishment, to take place on March 7-9, 2016:

 How best to deal with the relationship between law and religion is one of the fundamental questions that every liberal democratic country must encounter. Comparative constitutionalism worldwide sees a large spectrum of state and religion models. The American model of separation, for instance, is an exception in liberal-democratic countries, where one can find a variety of ways in which religions get support from the state. In some democracies there is even explicit acknowledgement of one religion as the official religion of the state.

While it is clear that most democracies reject the idea that religion should be privatized, one is still hard pressed to ask: What are the essential features of establishment regimes? Should any limits be set to the establishment of religion? Are there any means of support that should necessarily be ruled out? May a decent state grant preferential treatment to one religion over other religions (or some of them)? If so, on what legitimate basis could this be done, and in what ways?

This workshop will be devoted to a discussion of these questions and other related topics. We are especially focused on papers that address normative questions about establishment of religion from a particular point of view, but comparative papers are welcome too. The keynote speaker will be Prof. Joseph Weiler.

Scholars are invited to submit a 2-3 page abstract (double-spaced) by April 15th, 2015. Abstracts will be evaluated by the organizing committee and decisions made in May 2015. Please direct all abstracts and queries to: gideon.sapir@biu.ac.il or andrea.pin@unipd.it.

Who Speaks on Your License Plate?

The Supreme Court recently granted cert in Walker v. Texas Division, Sons of Confederate Veterans, Inc. The issues presented in that case are whether specialty license plates are a form of government speech, and whether Texas engaged in viewpoint discrimination when it rejected the SCV’s plate design featuring the Confederate battle flag. In a 2011 article in the Tulane Law Review, I wrote about license plate speech more extensively from a perspective slightly different than that presented in the Walker v. SCV case. My focus was on the question of Establishment Clause responsibility for religious messages on license plates. But the issues raised overlap significantly.

Imagine a state decides to display religious symbols or text on a license plate. South Carolina, for instance, created a specialty plate featuring a stained glass window with a superimposed cross and the words “I Believe.” Efforts to create a plate with a similar design failed in Florida. A federal court ultimately permanently enjoined South Carolina from issuing the plates.

Does a state’s specialty license plate program create a public forum for speech? If religious messages are displayed on the license plates, is the message purely private religious speech, or is it attributable to the state for Establishment Clause purposes?

Continue reading

Subway Ads and Mental Maps

Many thanks to Mark Movsesian and Marc DeGirolami for letting me return with a couple of guest posts.

I’ve been intrigued by some recent posts on this blog and how they confirm my long-held view that the normative decisions we make with respect to the law’s treatment of religion are deeply intermeshed with cognitive choices we make — how we “see” and understand religion.  Religious phenomena don’t fit easily or self-evidently into the mental maps by which we divide the pieces of the secular world.  All we can do is approximate, and those approximations matter.

subway1Let’s begin with Mark’s fascinating and wonderfully observant recent post about an ad for the Marble Collegiate Church that he recently saw in a New York City subway.  The ad itself was unremarkable, touting Marble Collegiate as “Church the way you always hoped it could be.”  (Marble Collegiate itself is more remarkable, founded in 1628 as a Dutch Reformed congregation and serving in the 20th century as Norman Vincent Peale’s pulpit for some 50 years.)  But the ad included a prominent disclaimer form the MTA (the local transit agency) taking up the bottom third of its precious space: “This is a paid advertisement sponsored by Marble Collegiate Church.  The display of this advertisement does not imply MTA’s endorsement of any views expressed.”  What gives? Continue reading

Disapproving Religion in the NYC Subway

Here’s a post about two advertisements I happened to see while riding the New York City subway this past weekend. The ads reveal much about the subtle disparagement churches and other religious organizations sometimes experience from government agencies in the Big Apple.

subwayTake a look at the photo on the left. It shows an ad for Marble Collegiate Church in Manhattan. As far as I can tell from its website, Marble is a mainline, Protestant congregation, committed to progressive causes like diversity and same-sex marriage. Marble, the ad proclaims, is “church the way you always hoped it would be.”

Pay particular attention to the bottom of the ad, which contains a disclaimer added by the MTA, the government agency that runs the subway. The disclaimer is in bold type and takes up about 25% of the ad space. It is unsightly, in a different font and format from the rest of the ad, and definitely distracts the reader. It says: “This is a paid advertisement sponsored by Marble Collegiate Church. The display of this advertisement does not imply MTA’s endorsement of any views expressed.”

This is very odd. True, the Supreme Court’s “endorsement test” provides that government may not take actions a reasonable observer could understand, in the circumstances, as an endorsement of religion. (This explains why local governments are so careful about Christmas decorations on public property). The MTA presumably insisted on the disclaimer to make clear to subway riders that, by posting Marble’s ad, it did not endorse the church’s underlying religious message.

But the endorsement test does not require a disclaimer here. No reasonable observer could think the MTA had endorsed Marble’s message by posting its ad. There are ads in subway cars for a variety of businesses and nonprofit organizations. Nobody thinks the MTA vouches for the truth of those ads, or even the good faith of the sponsors. Will cosmetic surgery “change your life?” Will Foursquare “lead you to places you’ll love?” Who knows? But the MTA doesn’t think it necessary to attach disclaimers. No one would expect it to do so.

For example, here’s an ad my brother pointed out to me, for a company boozecalled delivery.com. The ad says the company will deliver beer, wine and liquor on demand, thereby allowing customers to “Booze Wisely.” There’s no MTA disclaimer in this ad. But why not? If reasonable people could think the MTA had endorsed Christianity by posting Marble’s ad, why couldn’t they think the MTA had endorsed drinking by posting delivery.com’s? If anything, the danger of misunderstanding is higher. The delivery.com ad offers a 30% discount to people who include the word “SUBWAY” with their orders. Marble didn’t trade on the name “subway” or offer special treatment for straphangers.

Now, supporters of the MTA’s disclaimer policy might argue there’s no real harm here. The disclaimer merely reminds people of an important constitutional principle, namely, that civil government does not take positions on the truth of religious propositions–like whether Marble really is, as its ad claims, what people would hope from a church. At worst, the disclaimer is a bit unnecessary. What’s the cause for complaint?

It’s this: Requiring church ads–and only church ads–to include disclaimers is a kind of disparagement that places churches at an unfair disadvantage in the marketplace of ideas. The inescapable implication is that there is something uniquely impolite and dangerous about religion–more than doubtful cosmetic treatments, consumer fantasies, and boozing it up at home–and that government must keep its distance. The MTA’s policy doesn’t suggest state neutrality respecting religion, but disapproval. For the record, the endorsement test prohibits that as well.

UPDATE: Perry Dane points me to the MTA policy, which actually extends to ads with “political” and “moral” content as well as “religious.” I’m surprised, because I’ve seen plenty of ads with political and moral messages that don’t carry disclaimers, but maybe the MTA just hasn’t gotten around to labeling everything. Still, the differential impact on religious messages has implications under the endorsement test.

Pantagruel Comes for the Establishment Clause

That is the title of an essay I have up at the Library of Law and Liberty. Here’s the beginning:

In the second book of the sixteenth century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.” When the lawyers and jurists propose to give Pantagruel the relevant texts, writs, historical records, learned treatises, and legal authorities, he orders all of this “scribble-scrabble foolscrap” immediately burned. These materials, he scoffs, are “pure subversions of equity,” for “the law grew up out of the field of natural and moral philosophy.” After a perfunctory hearing and by the light of “philosophical and evangelical justice,” Pantagruel rules with swift panache, and his judgment is hailed as wiser than Solomon’s.

Pantagruel is coming for the Establishment Clause. He comes today bearing the standard of equality, and the manifestations of equality that he would have courts superimpose on the Constitution. In several disputes ostensibly involving the constitutional prohibition on “laws respecting an establishment of religion,” courts are interpreting this provision of the First Amendment to require adherence to a kind of pure principle of equality, or its close cousin, neutrality. And just as Pantagruelic justice beguiled Rabelais’ fictional Parisian intelligentsia, so, too, is the egalitarian justice of today’s courts extolled by the legal professoriate. Yet though certain forms of unequal treatment by the state on the basis of religion surely do create questions of constitutional dimension, we now face something like the obverse situation: courts so rigorously adhere to notions of egalitarian justice that the Establishment Clause is bloated to the point of collapsing of its own weight.

Event at Hunter College: “American Education and the Separation of Church and State: Fact vs. Fiction”

The CUNY Institute for Educational Policy is hosting a discussion entitled “American Education and the Separation of Church and State: Fact vs. Fiction,” on December 4th at Hunter College. The discussants include Philip Hamburger (Columbia), Ashley Berner (CUNY), and Matthew Yellin (Hillside Arts and Letters Academy):

Most Americans know the term “separation of church and state,” but few understand it. Howhas the phrase influenced education policy and practice? How has the Supreme Court’s interpretation of the First Amendment evolved? Are tax credits and vouchers that enable funding for religious schools Constitutional? Are public school teachers allowed to talk about religion in the classroom? If so, how can they do so without violating the Establishment clause of the Constitution?

These are timely questions for New Yorkers: Albany is considering a tax credit bill that would provide support for Catholic, Jewish, and Muslim, and other non-public schools; international leaders are calling for better religious literacy in K-12 classrooms, so that young citizens are prepared to negotiate our diverse and increasingly interconnected world. For many Americans, however, public funding for religious schools, and open discussions about religious beliefs in public school classrooms, raise important concerns.

On December 4, the nation’s leading scholar of First Amendment jurisprudence will set out the history and current interpretation of separation, and a master teacher will discuss some challenges and solutions to navigating religious literacy in New York’s public school system.

Get details and register here.

Removing Christmas (and Everything Else) from the School Calendar

Here’s a lesson in how to irritate everybody. Last week, the Board of Education in Montgomery County, Maryland, a wealthy suburb of Washington, DC, voted to remove references to religious holidays from its public school calendar. Starting next year, students will have off for “Winter Break” rather than Christmas, “Spring Break” rather than Easter, and two unnamed holidays rather than Rosh Hashanah and Yom Kippur. The decision came after a Muslim group requested that schools also close for a Muslim holiday, Eid al-Adha. Rather than declare Eid a holiday, the board decided to remove religious references altogether.

The board apparently believed that retaining the names of religious holidays is constitutionally problematic. That is not so. Naming school holidays after widely celebrated religious observances does not violate any of Supreme Court’s many Establishment Clause tests, even the so-called endorsement test. Consider Christmas, for example. Closing on December 25 does not endorse the religious meaning of the holiday. It simply acknowledges the fact that most students and staff would stay home. And as everybody, including the state and federal governments, refers to the holiday as Christmas, it’s natural for the school calendar to do the same. In fact, expunging the word “Christmas,” after it has been in the calendar for so long, suggests hostility to the religious meaning of the holiday. Such a suggestion itself creates problems under the endorsement test.

What about the fact that the schools recognize the holidays of some religions, but not others? Doesn’t that suggest hostility for religions the schools ignore? Obviously some Montgomery Country Muslims took it that way, and one must respect their feelings. But there’s a very good administrative reason why Montgomery County schools don’t close on Eid. Only about 1% of the county’s population is Muslim. There are simply not enough Muslim students and staff to justify closing the schools–just as there are not enough Hindus to justify closing schools on Hindu holidays, or Buddhists to justify closing schools on Buddhist holidays. That’s not a reflection of disrespect for those religions, but an acknowledgement of demographic reality. It’s worth noting that the Montgomery County schools excuse absences for Muslims who observe Eid.

I could explain why the other Establishment Clause tests also would allow schools to close for some religious holidays but not others, but there’s no point belaboring things. The Constitution does not require what the board did. But the board’s decision is worse than wrong; it’s pernicious. Striking the names of religious holidays has only served to create religious conflict. Many Christians and Jews have expressed dismay, as has the Muslim organization that requested the Eid holiday in the first place. That organization now worries, not implausibly, that angry parents and students will blame Muslims for the board’s decision. That would be unfair. The organization didn’t ask the board to rename these other holidays; that was entirely the board’s doing. But many people will ignore that fact.

In a pluralistic society like ours, respect is a crucial value. Respect for religious traditions other than one’s own promotes harmony and social peace. But recognizing a religious holiday that many students and staff observe doesn’t express disrespect for other religions, and the board’s decision to rename Christmas–as well as the other holidays–has done nothing to promote religious harmony. The board has created an entirely unnecessary, uncomfortable situation in which everyone feels aggrieved. One could hardly call that progress.

Common Law Constitutionalism: The Meaning of Establishment Circa 1800

In this post, I speculated about the possibility that the meaning of “establishment” might be illuminated by the English experience of the term before the Constitution’s drafting. The idea would be to understand “establishment” not by reference to a fixed meaning traceable to the founding, but instead by reference to a general, but not limitless, range of meanings in use as a matter of the common law experience antedating the Constitution. That range might have a core and a periphery, and while the periphery, it is true, might change over time, any changes would be very gradual and always intimately connected with the historical common law meanings of establishment.

Our Center board member, Don Drakeman, helpfully points me to a different kind of common law evidence–uses of the term establishment in state courts after ratification of the Constitution. He argues that a shift was occurring in the meaning of the term during this period: from a narrow meaning limited to what Thomas Curry has called a meaning “modeled on the Anglican establishment in England,” to a broader meaning covering the issue of general assessments for funding churches. The former meaning would suggest a “sect preference” approach to the issue of establishment, while the latter would not.

In his book, Church, State, and Original Intent (at pages 216-229), Don describes the different post-First Amendment views in Massachusetts and New Hampshire circa 1800 about the meaning of establishment as expressed in three court cases—Avery v. Tyringham (1807), Barnes v. Falmouth (1810), and Muzzy v. Wilkins (1803).

Tyringham concerned Article III of the 1780 Massachusetts Constitution, the preamble of which at that time stated that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and [that] these cannot generally be diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality.” Based on that rationale, the Massachusetts Constitution goes on to authorize towns “to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.” But Article III also provided that “no subordination of any one sect or denomination to another shall ever be established by law.” The opinion of Justice Theodore Sedgwick (who also served as a member of the First Congress that adopted the Establishment Clause) concluded that in these “strong and energetic” provisions “the religion of Protestant Christianity is established. Liberty of conscience is secured.” (emphasis in original) That interpretation suggests that the sort of explicit public support for Protestant Christianity contemplated by the Massachusetts Constitution does constitute an establishment, even though Massachusetts never had an expressly authorized or designated official church establishment.

In a later Massachusetts case, Barnes v. Falmouth (1810), Justice Theophilus Parsons considered whether the minister of an unincorporated church could share in taxes raised under Article III. Justice Parsons wrote that the case provided an occasion to “consider the motives which induced this people to introduce into the constitution a religious establishment, the nature of the establishment introduced, and the rights and privileges it secured to the people, and to their teachers.” Here is Don’s description of the opinion:

According to Chief Justice Parsons, the rationale for an establishment is based on the fact that “[c]ivil government…availing itself only of its own powers, is extremely defective”; accordingly, “the people of Massachusetts…adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of its citizens.” Fortunately, he writes, “the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted.” In particular, “This religion, as understood by Protestants, tending, by its effects, to make every man…a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of their constitution.” Pointing out that there is “liberty of conscience” for all, “whether Protestant or Catholic, Jew, Mahometan or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people.” It is, therefore, “the right and duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality.” Unincorporated churches could not share in taxes raised under Article III, concluded Parsons; otherwise, which teacher to be supported depends “exclusively on the will of a majority of each society incorporated for these purposes.”

221-222. Don argues that Justice Parsons’s description of this arrangement as an “establishment” shows that some Massachusetts jurists believed that the town-by-town assessments for Protestant teachers were themselves believed to be establishments. It is an interesting question whether the assessments themselves, or instead the assessments only as part of the general, if unofficial, privileging of Protestant Christianity as the civic religion, is really what Justices Parsons and Sedgwick are describing as an “establishment.” The latter possibility might narrow the meaning of establishment somewhat: the privileging of Protestant Christianity by all of the means described by these Justices in the Massachusetts Constitution—including the assessment scheme—comes perhaps closer to the meaning of establishment as “official” privileging than does a meaning which considers assessments favoring religion alone as an establishment.

A third piece of evidence can be found right over the border among some Justices in New Hampshire, where, Don writes, “at about the same time, a distinguished jurist who was a member of the Second through the Fifth Federal Congresses made a point of saying that the Granite State’s town-based general assessment tax system for the support of Protestant ministers, which was quite similar to the Massachusetts approach, was clearly not an establishment of religion.” 223

The issue arose in the 1803 case of Muzzy v. Wilkins, where Chief Justice Jeremiah Smith “considered whether a Presbyterian was entitled to an exemption from the town taxes in support of the Congregational church under New Hampshire’s constitution, which empowered the legislature to authorize the towns of the state to make provision for public protestant teachers of piety, religion, and morality.” According to Chief Justice Smith, the assessment system alone did not constitute an establishment: “No one sect is invested with any political power much less with a monopoly of civil privileges and civil offices. All denominations are equally under the protection of the law, are equally the objects of its favor and regard.”

Chief Justice Smith’s is that rare opinion where a judge actually provides a definition of an “establishment”: “A religious establishment is where the State prescribes a formulary of faith and worship for the rule and governance of all the subjects.”

This definition, it is true, is narrower than what can be discerned from the general approach in the two Massachusetts decisions. But New Hampshire’s state constitution at the time did not (so far as I know) contain the sort of language unofficially, but quite explicitly, privileging Protestant Christianity as was the case in Massachusetts. It might be that it was this general privileging (even if unofficial, and to include, in Massachusetts, state assessments) that was thought by both Massachusetts and New Hampshire jurists to constitute “establishment.”

At any rate, it would be worthwhile, as well as interesting, to explore the range of common law meanings of establishment before ratification of the First Amendment as well. As Don says in the book, it would probably be impossible to arrive at a single fixed meaning. But it might well be possible to reach consensus about a general range or spectrum of meanings, with core or uncontested meanings graduating outward toward peripheral or contested ones.

Fallon on Justice Breyer’s Van Orden Concurrence

The latest issue of the Harvard Law Review contains an extensive appreciation of a selection of Justice Breyer’s opinions. I thought to note one essay as particularly well done: Professor Richard Fallon’s discussion of Justice Breyer’s decisive concurrence in Van Orden v. Perry–one of two companion Ten Commandments decisions issued by the Court in 2005. In that concurrence, Justice Breyer decided for a variety of reasons that, he said, defied codification by test or iron rule, that the monument that had stood for many years on the grounds of the Texas state Capitol did not violate the Establishment Clause. Here is Professor Fallon (footnotes omitted):

Justice Breyer’s third ground for distinguishing prior cases, and especially McCreary County, seems to me to cut to the heart of the dilemma that the Supreme Court confronted. Even if the Texas monument’s long history did not dilute its religious message, that history served as a reminder that the Establishment Clause — read against the background of history — cannot, as Justice Breyer put it, “compel the government to purge from the public sphere all that in any way partakes of the religious.” From the beginning, religion has been woven in various ways into American public life. Recognition of this heritage does not, of course, point directly to the correct ruling in Van Orden. It does, however, help to identify the tension that Van Orden required the Court to resolve, or at least manage. Although the Supreme Court has frequently articulated a demand that the government must be neutral in matters of religion, neither that demand, nor what Justice Breyer referred to as the “Court’s other tests,” can “readily explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.”

Without purporting to offer a comprehensive resolution to the tension that the Court’s cases exhibit, Justice Breyer’s Van Orden concurrence suggests a narrow prescription that embodies pragmatic good sense. Although modern governments may not initiate novel forms of support for religious institutions and beliefs, the Establishment Clause should not be read to mandate the chiseling out — which in some cases might be quite literal — of all religious symbols and practices that have long formed part of the architecture of American public life, American public buildings, and American public monuments. To read the Clause so stringently would provoke anger at and resentment of the Supreme Court’s perceived hostility to religion far disproportionate to any good that this approach would achieve….

There is more, and it’s well-worth reading. I, too, admire Justice Breyer’s Van Orden concurrence, but while my reasons are similar to Professor Fallon’s, they are not identical. Perhaps the primary point of divergence in our perspectives is that my defense of historical settlements and practices as a guide to interpreting the meaning of the religion clauses does not depend either on judges’ pragmatic calculations about the comparative social divisiveness of ruling this way or that, or on an overarching or master commitment to religious neutrality, but instead on the intrinsic worth of long-standing historical settlements and customs (doctrinal and social) as a method of conciliating the conflicts that attend these controversies:

The past lies in us and is constitutive of who we are, and though history may be epistemically uncertain, logical certitude is hardly the point of a theory of religious liberty. This point serves as the connection to social history. If the doctrinal negotiations of the past are worthy, though imperfect, counselors for the predicaments of the present–if they are that which we know, and their memory is that which we have–then the objects of those negotiations deserve our attention as well. Political communities are not a-temporal or static associations. They are trans-generational enterprises that depend on the transmission of political and social histories….

The past, in sum, is a beacon. It is a consolation, sometimes effective, other times not, against the ravages of conflict, incommensurability, sacrifice, and tragic loss.

The Tragedy of Religious Freedom 123, 144.

Winer & Crimm, “God, Schools, and Government Funding: First Amendment Conundrums”

In January, Ashgate Publishing will release “God, Schools, and Government Funding: First Amendment Conundrums” by Laurence H. Winer, (Sandra Day O’Connor College of Law, Arizona State University) and Nina J. Crimm (St. John’s University School of Law). The publisher’s description follows:

In recent years, a conservative majority of the U.S. Supreme Court, over vigorous dissents, has developed circumventions to the Establishment Clause of the First Amendment that allow state legislatures unabashedly to use public tax dollars increasingly to aid private elementary and secondary education. This expansive and innovative legislation provides considerable governmental funds to support parochial schools and other religiously-affiliated education providers. That political response to the perceived declining quality of traditional public schools and the vigorous school choice movement for alternative educational opportunities provokes passionate constitutional controversy. Yet, the Court’s recent decision in Arizona Christian School Tuition Organization v. Winn inappropriately denies taxpayers recourse to challenge these proliferating tax funding schemes in federal courts. Professors Winer and Crimm clearly elucidate the complex and controversial policy, legal, and constitutional issues involved in using tax expenditures – mechanisms such as exclusions, deductions, and credits that economically function as government subsidies – to finance private, religious schooling. The authors argue that legislatures must take great care in structuring such programs and set forth various proposals to ameliorate the highly troubling dissention and divisiveness generated by state aid for religious education.