Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

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Tuesday, December 23, 2003
There's a good piece at First Things about the establishment and free exercise "clauses" (as the article points out, they are part of the same clause) of the 1st Amendment.

The article makes two points. First, it points out that the Ninth Circuit's decision in the Pledge of Allegiance case is quite cogent and entirely faithful to Supreme Court precedent in this area. Specifically, the Pledge fails the Lemon test (there is no plausible secular purpose for including the phrase "under God" in the Pledge, and the legislative record makes clear that no secular purpose was intended in any event), fails O'Connor's "Endorsement" test (the Pledge as written unambiguously endorses a view about God's existence, as clearly attested by the legislative record) and fails Kennedy's "Coersion" test (since students are forced to listen to an official leading the class in an assertion of God's existence). Hence, the Pledge of Allegience, under all varieties of current establishment-clause doctrine, is unconstitutional. So, by extension, is the prayer that opens sessions of Congress, the singing of "God Bless America" at public functions, the reading of the Declaration of Independence, etc. Existing establishment-clause doctrine is revealed to be absolutely hostile to any reference to the deity in the public square, and all attempts to fix this problem in recent years have only made it worse. Since this is manifestly not what was intended by the ratifiers of the 1st Amendment - or, indeed, of any subsequent generation of American citizens - current doctrine must be jettisoned.

Second, it points out that the case of Davey v. Locke, filed by Joshua Davey after his "Promise" scholarship was revoked (in accordance with Washington State law) because he sought a degree in theology, raises serious problems for existing free-exercise doctrine. Indeed, that doctrine scarcely exists, and recent free-exercise cases have been decided on free speech grounds rather than free-exercise grounds. Because of this precedent, in order to resolve Davey the Supreme Court will either have to say the choice of degree is a form of expressive speech (which is nonsense), or that discriminating against religion in the allocation of scholarships is perfectly fine and no violation of the free-exercise clause, or it must revise free-exercise doctrine.

The author recommends the revision of doctrine in both cases. Specifically, the author suggests that the Court revise its understanding of the establishment clause, which was originally intended to serve to support the free exercise clause rather than to stand on its own as an independent principle, and to bolster its free-exercise doctrine into something much more stoutly opposed to discrimination against those choosing to exercise their religion.

This is all very appealing, and the analysis of the madness of current establishment-clause doctrine is entirely convincing (not that I needed to be convinced). But appealing or no, I cannot conclude in agreement with the author.

First, with respect to the establishment clause. It is true that the establishment clause's purpose is to support the free-exercise clause, rather than to frustrate it, as currently construed. But that fact doesn't provide a court with a test for determining whether the clause has been violated. Munoz suggests that the establishment clause means that no individual shall receive special privileges or suffer special penalties on account of religion. If find this problematic; the text does not sound like it is creating an individual right, which is how Munoz construes it. Moreover, the examples he gives of what the Founders intended to prohibit - religious qualifications for office, Sabbath laws, public chaplains - either are prohibited elsewhere in the Constitution (in the first instance) or exist currently (there are "blue laws" on the books in many jurisdictions, and the army chaplains maintains a corps of chaplains). So I have a hard time seeing how this understanding is authentically originalist.

Worse, I'm not sure it brings substantial improvement over our current legal situation. Take the pledge case. If "discomfort" is a "penalty" - and who is to say that Justice Kennedy will not find it so, since he has already found it to be "coersion" - then having to listen to the pledge if one is an atheist is a "penalty" incurred on account of religion (or lack thereof). I fear that Munoz's proposed solution is no better than Kennedy's. After all, if Kennedy construed "coersion" strictly, then the Pledge would clearly pass his test, as would most other instances of public religiosity.

This is not going to work. I would suggest that another, more fundamental attack on existing establishment jurisprudence is in order, a two pronged attack: first, on the doctrine of incorporation; second, on the definition of the word religion.

Incorporationism is the assertion that the Bill of Rights was incorporated into the constitutions of the various states by the Privileges and Immunities clause of the 14th Amendment to the U.S. Constitution. This is *not* reigning doctrine; there is no Supreme Court case law that supports this position. It is, nonetheless, a far more persuasive and logical basis for the existing Supreme Court jurisprudence that applies the Bill of Rights against the actions of state governments, as that jurisprudence currently rests on "substantive due process" grounds that make no sense at all. So it's important from the outset to recognize that incorporationism is a law-school doctrine, not a Supreme Court doctrine.

If incorporationism means anything, it means that, under the Privileges and Immunities clause of the 14th Amendment, states cannot abridge the privileges and immunities of citizens of the United States, and that these are construed to refer to those rights granted under the Constitution of the United States. The right to free exercise of religion clearly qualifies as such; the Constitution binds only Congress not to abridge this right, and the incorporation of this right through the 14th Amendment prohibits the states from doing so as well.

But how does "establishment" qualify? "Establishment" is not a privilege or immunity. There is no "privilege" of being unable to establish a religion, not an "immunity" from being able to establish one. And realize that this is what we are talking about: "establishment" of religion would be an act of a sovereign people that, while it might be good or bad on the merits, does not directly infringe on the rights of any dissenter (as any British Jew or Muslim or, for that matter, Roman Catholic or Calvinist or Quaker can attest). Establishment may, empirically, be a threat to free exercise in many cases, but it is not in itself an infringement. And besides, we have the free exercise clause to prevent any such infringement.

Moreover, the establishment clause does not prohibit the establishment of religion. It prohibits Congress from making any law "respecting" establishment of religion. This is clearly (to my mind) a prohibition on Congress either establishing a national religion or disestablishing state establishments.

In other words, the establishment clause is an instance of federalism, a case where the Constitution is distinguishing between the proper competancy of the Federal government and the governments of the several states. If that is the case, it is inconceivable that the establishment clause could be incorporated against the various states, even if the free exercise clause is. Incorporating the establishment clause makes as much sense as incorporating bicameralism or any other constitutionally-specified characteristic of the Federal government against the states: it's a category mistake.

This tack, of course, puts paid to "Roy's Rock" and creche-display disputes and the like. States and (if authorized by the states) localities can do what they like to support religion, including specific religious organs, in their jurisdictions, provided that they in no way impinge on free exercise by so doing. Florida can establish a prison run by Charles Colson on Christian principles, but it cannot compel prisoners to go there and be evangelized if they dissent. Michigan can give vouchers to parents to attend religious schools - Michigan could even give money directly to Catholic schools if it felt like it - but it cannot compel parents to send their children to Catholic schools (or any sectarian or religious schools).

It does not, however, deal with the Pledge or other Federal matters, since the establishment clause does indeed bind Congress and the Federal government. To deal with this, we need to address the question of how to define religion.

Religion is pragmatically understood by the current court to mean, first and foremost, belief, conviction, conscience. Any sincere reference to God, therefore, is understood to be a religious act. (The Court has historically understood some such references to be, effectively, insincere; ceremonial, non-theistic invocations that have no substantive content.) This is precisely why recent free exercise cases have been decided as free speech cases; once belief becomes expressed, the Court implies, what we're dealing with is not a religious fact but an expressive act, and the question is one of free speech. Religion is something one professes, and free exercise means the right to this profession, without suffering disability on that account. All expressive acts are speech.

This, I think, is profoundly wrong. A religion is not an individual profession; it is a corporate entity, with a physical presence in space and an extension in time. You do not decide that you are a Jew or a Catholic or a Muslim or a Hindu; the corporate body of Judaism, of the Catholic Church, of Islam, or of Hinduism, decides whether you are such. Religion is not simply what you believe to be so in your heart. It is baptism; it is circumcision; it is cremation. It is, most profoundly, the transmission of the truth about the nature of things and how to live to one's children. Free exercise of religion does not mean the right to believe what you like. It means the right to affiliate into such corporate bodies (and, of course, to found new ones). And it means the right to induct one's children into same.

If this is what religion is, then establishment of religion means affiliating any such corporate body to the state. And it seems clear to me that the Pledge of Allegiance - and "In God We Trust" on the currency, and so forth - does not constitute religion as such. In effect, I'm saying that ethical monotheism - that we humans and our institutions exist "under God" - is not religion; it is something else. This minimalist view must be ramified but also embodied in institutions and practices to become religion as such. Unitarianism - which professes ethical monotheism (sort of; they've fudged of late) but has an institutional structure, regular services, etc. - is a religion. Ethical monotheism as such is not.

I recognize that this is a relatively radical position to hold. But I think it's true to the facts of how we behave and how we speak. I had an argument with an atheist friend once where I protested against official atheism by arguing that atheism is no less a religion (a religion professing the nonexistence of God) than monotheism. To which he responded: that's nonsense. Where are the atheist churches? What is their heirarchy? What is their law? What are their practices? How are they organized? What are their ceremonies? How do atheists manifest their beliefs in the nonexistence of God? They don't. Atheists do not, in any meaningful sense, form a corporate body dedicated to their collective belief in the nonexistence of God. There is no church of atheism. Atheism is not a religion.

I hear an objection: Buddhism is, arguably, an atheist religion. But this only proves my point: Buddhism is an atheist religion; atheism is a religion. Similarly: Judaism is an ethical-monotheist religion. Ethical monotheism per se is not a religion.

If the foregoing understanding were to be adopted by the Court, there would still be establishment clause jurisprudence. The clause would not be eliminated. It would be eliminated at the state level, of course. And, at the Federal level, there might still be dispute what constitutes the establishment of a particular religion. But there would be no more debate about whether the Pledge of Allegiance and the like constitute establishment of religion; they do not.

Next, with respect to the free exercise clause, I am puzzled by the logic in Munoz's approach to the Davey case. From Munoz's perspective, this is a case of religious discrimination. Joshua Davey lost his scholarship because he chose to study theology, for which the scholarship was ineligible. In what sense what Davey's right to freely exercise his religion infringed? Was he forbidden to go to the school? Was the school forbidden from teaching any particular doctrine or practice?

Suppose, for example, that the state had mandated that its scholarships not be used for the study of theology, philosophy or literary criticism, arguing that none of these courses of study are remotely useful to the betterment of the citizenry of the state and are therefore not entitled to state subsidy. Would Davey have a case? I should think not. Why can't the people of Washington decide that religion is a waste of time and undeserving of state subsidy?

The logical end of the road that Munoz embarks on with this discrimination logic is that the state may never provide a benefit that is secular unless it offers a religious alternative. It may not provide scholarships unless they may be used at religious institutions. Presumably, by extension, it may not have public schools unless vouchers are available to attend religious schools. Where does this logic end?

The free exercise clause is not an anti-discrimination clause. It is, rather as it sounds, a pro-freedom clause.

Munoz is concerned that current free-exercise jurisprudence is insufficiently robust, and would like to see the Court more active in this area. But why? Where are the pervasive violations of the right to worship as we please? Munoz cites none. The one example he does give - where a municipality constructed public-health regulations specifically to prohibit Santaria, a religion that practices animal sacrifice - was an instance where the Court ruled unanimously for free exercise. Munoz complains that such clear attempts to suppress religious practice are comparatively rare. This is a complaint? That means we're all following the law! And if we are, then why should the Court stick its nose in our business?

This points to a broader problem with conservative writing on the Court. Traditionally in the post-war world, liberals have been the ones pushing for the Court to extend and expand its understanding of different rights and to create new ones out of whole cloth, and have been the ones eager to see the courts take a larger and larger role in public life. Conservatives, meanwhile, have argued for restraint. But now, both sides are eager for an active an involved Court. Both sides want the Court to expand rights and stick its nose into our business. It's just that they have a different list of rights. Liberals want the Court to broadly construe the right to free speech (understood as personal expression) in the 1st Amendment, the establishment clause of the 1st Amendment, the equal-protection clause of the 14th Amendment (except with respect to affirmative action), the prohibition on illegal searches and seizures in the 4th Amendment, the self-incrimination provision of the 5th Amendment, the prohibition on cruel and unusual punishments in the 8th Amendment, and the right to privacy and sexual autonomy in the . . . well, no one's sure which Amendment that one's in, but it's somewhere in the emanations from the penumbras of a bunch of them. Right-wingers, meanwhile, want the Court to broadly construe the free exercise clause of the 1st Amendment, the right to free speech (understood as political speech, including monetary contribution to such speech) in the 1st Amendment, the right to bear arms in the 2nd Amendment, and the just compensation clause of the 5th Amendment, and the equal-protection clause of the 14th Amendment (only with respect to affirmative action). And even this may make the distinctions sound more principled than they are, since the Bush v. Gore decision rested primarily on the equal-protection clause, and was applauded by most conservatives and denounced by most liberals. To a greater and greater extent, conservatives are treating the Court as no less a political venue than are liberals, and their arguments are getting less and less principled. And their trust in democracy and the sovereign people diminishes concomitantly.

Munoz's free-exercise argument suffers, to my mind, from this very same fault. He would construe the free-exercise clause very broadly, to prohibit any state discrimination against religious viewpoints in provision of services, not because he thinks that there are egregious violations of the rights of religious people that can only be remedied in this manner, but because a narrower construction would leave the courts little to do precisely because there are so few clear-cut violations of the rights of religious people. Moreover, he recognizes that many of the regulations that force religion out of the public square are caused by misguided establishment-clause jurisprudence, but he is insufficiently trusting of the people to repeal these regulations if establishment-clause doctrine were revised, and demands that what was previously prohibited now be imposed. This kind of "everything that is not prohibited is compulsory" thinking is not a conservative constitutional philosophy, and it is not conducive to the education of a free people.

The Blaine amendments of various state constitutions may be bad policy; I think they are. But they are not violations of the Constitution of the United States. The sovereign people, acting through the several states, are free to deny state funds to religious institutions if they wish. To deny them that right is an infringement on their freedom, the freedom to act collectively in their own interest as they see it, the most fundamental political freedom there is. And for what? Whose freedom is infringed by the legacy of Blaine? No one's that I can think of.

It is true that Munoz's argument is more in tune with the way the Court construes the Constitution generally. He is, after all, making an equal-protection-style argument, and no argument is more persuasive to the Court. But while this might be a tactical political advantage, it is a strategic political weakness, for the overly broad interpretation of this clause is a major pillar of the imperial judiciary's edifice. We will never get a restrained Court, one that trusts the sovereignty of the people and is unconcerned if it has little to do outside of extraordinary circumstances, if we do not whittle this particular pillar down to size. That means giving up on the judicial fight against most forms of affirmative action, giving up on Bush v. Gore's equal-protection argument, and giving up on Munoz's novel expansion of the free-exercise clause into an anti-discrimination clause. That's the price to be paid to restore popular sovereignty, if indeed it can be restored.