Tightening the Circle

The Babel just alluded to rises on the following questionable, but almost never questioned, foundation: that the Establishment Clause is a source of judicial solutions to all “religion and government problems.” Imagine a vast sphere, representing the length and breadth and height of all those problems in our dizzyingly pluralistic American society. Then comes the Clause, dividing light from darkness in that sphere, creating the firmament, segregating land from sea. “It shall be secular.” “It shall be neutral.” This must be the intuitive view of the Clause taken by Justices when they warn that departing from the Court’s jurisprudence will transform middle America into Northern Ireland, Mississippi into Beirut.³⁶

But surely this is not the only view one can take. Can we instead read the Clause as operat-ing within our vast void, not to catalogue and categorize every problem, but rather to specify a narrower field of “religion and government” problems? Call them “religious establishment problems,” and understand the word “establishment” as so many other well-chosen words in our famously reticent Constitution — as a legal term of art, clothed with all the historical and conceptual finery of such terms.³⁷The field of religion-and-government problems specified by the Clause would begin from those history teaches were present to the minds of the fram-ing generation as befram-ing susceptible of legal resolution.

The power the Clause denies to government would thus be akin to a clause forbidding gov-ernment from entering into an definable legal arena (such as coining money or issuing

“Letters of Marque and Reprisal”), or to one inviting government to occupy an arena (such as the power to construct a uniform rule of bankruptcy, or to rule on admiralty and maritime matters).³⁸If we could understand the “antiestablishment” prohibition of the First Amend -ment as withdrawing govern-ments from such matters, then perhaps that one gesture might strip the Establishment Clause of its most unappealing adornment — its tendency to invite

flights of cultural, sociological, and theological fancy. Instead, Justices could concentrate on the idea of an establishment of religion as a legal and not a cultural construct — as a demarca-tion of institudemarca-tional human relademarca-tionships, and not as a Maginot Line between clashing concepts or theologies or states of mind. This would tighten the circle of the Clause’s prohibitions from cultural, sociological, and theological matters to legal matters. If possible, perhaps the most immediate benefit of doing this would be to discipline the way historical materials are used to interpret the Clause. Restricting the target, the “object,”³⁹of the Clause to concretely identifi-able relationships between institutional government and institutional religion would give in-terpreters a matrix within which to process history.

For instance, in trying to solve the modern riddle of government religious symbolism, no longer would we be forced to speculate endlessly and pointlessly about the kind and degree of theological content, or lack thereof, in George Washington’s Farewell Address or in the motto

“In God We Trust.” Instead, we would ask whether the use of such religious language present-ed to the generation that frampresent-ed the First Amendment a species of relationship between state and church — between the real institutions of government and religion — that they sought to outlaw by ratifying the Amendment. Such evidence in American history appears to be sparse, which is why even separationist scholars commonly observe that government religious lan-guage or symbolism would have been thought by the founding generation to present no con-stitutional issues, as opposed to issues of political prudence. This historical datum ought to have significance about the reach of the Establishment Clause. It ought to mean that the Clause simply does not speak to the issue of government religious speech and symbolism — not because of some particular kind of theological content or message in the symbols, but be-cause the symbols typically do not betray the presence of any form of historically prohibited institutional relationship between church and state.

Consider how this simplifies the “In Jesus We Trust” problem from the previous section.

For both the Court majority and for Scalia, the solution to that problem comes down to analyz-ing the theological-symbolical content of the motto in light of some broader principle — for the majority, the motto’s “endorsement” value, and for Scalia, its theological fit with our legal traditions. Thus, in a way, Scalia and the majority are both analyzing, inappropriately, the theological content of the motto, albeit at different levels of abstraction. But if the Establish -ment Clause is not concerned about semiotics or theology, but instead about concrete, discernible institutional relationships, the problem becomes soluble by conventional legal standards. Now we can ask whether the motto betrays some kind of forbidden institutional relationship between the state and an actual religious institution. There are historical an-tecedents for such an inquiry. For instance, during the Elizabethan phase of the English Reformation, the government legally mandated certain changes in public religious symbol-ism — for instance, replacing images of the Blessed Virgin Mary with images of Elizabeth — in order to cement the increasingly stringent Anglican establishment. Or, again, in the late Fourth Century A.D. the Roman emperor Gratian very publicly renounced his traditional title

T H E A M E R I C A N E X P E R I M E N T : R E L I G I O U S F R E E D O M

“Pontifex Maximus” and transferred it to the Pope, demonstrating a withdrawal of the Roman state from religious governance.⁴⁰In these cases, the government’s deployment of religious symbolism was in the service of strengthening (or dismantling) a concrete legal relationship between state and church. Such examples at least furnish a starting point for thinking about how “In Jesus We Trust” might function in a genuine religious establishment, and would therefore be prohibited by the Establishment Clause. Of course, this also means that if the motto is pure window-dressing then its deployment might be insensitive or blasphemous, but not constitutionally forbidden. More importantly, however, the analysis of the constitutionality of the motto does not turn on spurious distinctions between the “sectarian” motto and the

“monotheistic” motto, or between the “endorsing” motto and the merely “solemnizing” one. It cannot be said too many times that, even were inquiries of that nature coherent (which is doubtful), judges are not equipped to make them.

But at this point, it will be objected, what we have is mere intuition. Granted, the prohibitory circle of the Establishment Clause must be tightened from cultural-theological constructs to institutional-legal constructs. Granted, this would have the likely effect of disciplining Justices’ use of history in solving anti-establishment problems by channeling historical mate-rials into a concrete legal matrix. Granted, the resulting anti-establishment jurisprudence would probably be more consistent and coherent because it would now be keyed to concrete institutional relationships — and judges are better equipped to analyze such things as opposed to semiotics and theology. But, even granted all that, how can the proposed “legal-institutional”

recasting of the Establishment Clause be justified or defended? Is it a pure preference, foisted on the Clause by those (like me) who are dissatisfied with the Court’s jurisprudence and who want to find a way to discipline and regularize it?

The obvious place to begin is with the text of the Clause. Any account of the Clause as keyed to institutional legal relationships — and not to cultural-theological concepts — ought to tie itself to the words. Both Court and scholars have appeared to shy away from the words of the Clause, particularly the key phrase “establishment” of religion.⁴¹Indeed, it is possible that in the Court’s jurisprudence the word “respecting” functionally determines the reach of the Clause more than what must obviously be the central focus of the Clause — “an establish-ment of religion.” That is, by interpreting “respecting” to mean something like “leading up to”

or “tending towards” establishing religion, it is as if interpreters have absolved themselves from doing the hard work of defining what the term of art “establishment of religion” actually means as a legal concept. After all, if the phrase “respecting an establishment of religion” sim-ply means, at the end of the day, “somewhere within shouting distance of a religious estab-lishment,” then we are excused from having to be too precise about what the Clause actually prohibits. A convincing jurisprudence of the Establishment Clause cannot rest on such verbal laziness.

Looking at the words of the Clause with fresh eyes, isn’t it plain, isn’t it obvious, that the term “establishment of religion” is a legal term of art, just as much phrases in other parts of

the Constitution such as “Letter of Marque and Reprisal” or “Bill of Attainder” or “Corruption of Blood”? This certainly doesn’t make “establishment of religion” easy to define, but it would discernibly change the whole approach to specification of what is prohibited. It would change it from a mystical to a legal inquiry. It would dispense with the historically implausible as-sumption that “establishment of religion” really just means “bad religious characteristics in a secular government”? Nor would this approach mean that the concept of “establishment of re-ligion” is somehow frozen in time. Leading scholars have asked whether the concept of “estab-lishment” or “separation of church and state” could somehow evolve over time, or indeed be transformed by the Fourteenth Amendment.⁴²But the premise of such scholarship is that the original concept of an “establishment of religion” must have a fairly concrete, definable legal architecture. Otherwise, how could anyone — not to mention a judge — even begin to chart how the concept would change over time, or be transformed from what into what. It would be as if the evolutionist were trying to account for the development of homo sapiens with no fossil record at all.

Conclusion

Thus the re-imagination of the anti-establishment prohibition does not promise easy answers, but it does furnish a starting point in relatively definite legal categories. Foundational as-sumptions for a jurisprudence as volatile as the Establishment Clause are — to say something utterly banal — critical. We should not be content to start building on generalities such as

“neutrality” and “non-endorsement,” because we will keep circling the problem, endlessly restating it in terms of vague principles that do not promise objective solutions. “Does the reli-gious symbol unconstitutionally endorse religion to the reasonable observer by sending the message that he is a second-class citizen and political outsider, or does the religious symbol merely acknowledge citizens’ religious convictions?” Who knows? Merely posing such ques-tions fatigues the mind and heart.

Are there scholarly foundations already being laid for such a rethinking of the Establish -ment Clause? I think so. Michael McConnell’s magisterial taxonomy of founding-era estab-lishments in the first part of his Establishment and Disestablishment at the Founding is a good example.⁴³McConnell tackles the problem of religious establishments as if they were com-posed of a discernible, definable matrix of legal characteristics such as the following:

government control over church doctrine and structure; mandatory church attendance and prohibitions on non-official forms of worship; certain forms of public financial support, and so on. McConnell’s stated intention in that article is not to revolutionize the jurisprudence, but instead to call it back to a kind of historical realism.⁴⁴In my view, this is only way forward in Establishment Clause jurisprudence. Our three-part tests have become untethered from the historical milieu in which the anti-establishment prohibition was generated, and are flailing in mid-air. It is no response to say, “That is as it should be. The constitutional guarantees are supposed to evolve.” It is no response because, if the jurisprudence lacks roots in historical reality to begin with, the evolution of the jurisprudence is unreliable and directionless,

virtu-T H E A M E R I C A N E X P E R I M E N virtu-T : R E L I G I O U S F R E E D O M

ally by definition. We need to revolutionize Establishment Clause jurisprudence by reading the Clause in a revolutionary way — as a legal prohibition, and not as a theological manifesto.

Otherwise, interpreting the Clause will continue to lead us toward such sentiments as the Psalmist felt when pondering the omniscience of God: Such knowledge is too wonderful for me;

It is high, I cannot attain to it.⁴⁵

* Kyle Duncan is Assistant Professor of Law at the University of Mississippi School of Law.

1Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, C.J., dissenting).

2See, e.g., Symposium: The (Re)Turn to History in Religion Clause Law and Scholarship, 81 NOTREDAMEL. REV. 1697-1843 (2006) (featuring articles by Steven K. Green, Marci A. Hamilton & Rachel Steamer, Douglas Laycock, and Steven D.

Smith).

3McCreary County v. ACLU, 545 U.S. 844 (2005); Van Orden v. Perry, 545 U.S. 677 (2005).

4See, e.g., Thomas B. Colby, A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause, 100 Nw. U. L. Rev. 1097 (2006).

5See Kyle Duncan, Bringing Scalia’s Decalogue Dissent Down From the Mountain, 2007 UTAHL. REV. 287 (2007).

6I will sketch out what sort of frame I believe is suggested by the text of the Clause in Part III, infra.

7See, e.g., Van Orden, 545 U.S. at 683 (observing that the Court’s “cases, Janus like, point in two directions in applying the Establishment Clause”).

8Everson v. Board of Educ., 330 U.S. 1, 11(1947); see also Engel v. Vitale, 370 U.S. 421, 428-29 (1962) (reading same his-torical motivations for Establishment Clause).

9See, e.g., Everson, 330 U.S. at 14 (observing that, after ratification of the First Amendment, “some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups”); see also ANSONPHELPSSTOKES& LEOPFEFFER, CHURCH ANDSTATE IN THEUNITEDSTATES64-82 (1964) (discussing establishments in states before and after First Amendment).

10GERARDBRADLEY, CHURCH-STATERELATIONSHIPS INAMERICA80 (1987).

11See, Everson, 330 U.S. at 11-13.

12See, e.g., Flast v. Cohen, 392 U.S. 83, 103-04 (1968) (constructing unique taxpayer standing doctrine for

Establishment Clause cases based on Madison’s “three pence” argument in his Memorial and Remonstrance); see also Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2583 (2007) (Scalia, J., concurring) (disputing reliance on Madison’s Memorial for Establishment Clause interpretation).

13See, John Courtney Murray, Law or Prepossessions?, in ESSAYS INCONSTITUTIONALLAW(Robert G. McCloskey ed., 1957).

14See, e.g., BRADLEYCHURCH-STATERELATIONSHIPS, supra, at 87-88 (arguing that “Madison’s personal philosophy … has nothing to do with the meaning of the Establishment Clause”).

15See, id at 88 (asserting that “’[n]oncontroversial’ understates the banality of the liberties championed by Madison”).

16Murray, Law or Prepossessions, supra.

17See, 5 FOUNDERS’ CONSTITUTION105-06 (Philip B. Kurland & Ralph Lerner, eds. 1987).

18See, e.g., Van Orden, 545 U.S. at 724-25 (Stevens, J., dissenting) (citing Madison’s 1822 letter).

19See, e.g., McCreary County, 545 U.S. at 880 (citing Story’s Commentaries as primary support for proposition that “the religion of concern to the Framers was not that of the monotheistic faiths generally, but Christianity in particular, a fact that no Member of this Court takes as a premise for construing the Religion Clauses”); Wallace, 472 U.S. at 52 (cit-ing Story’s Commentaries to support proposition that the Religion Clauses “merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism”).

20JOSEPHSTORY, COMMENTARIES ON THECONSTITUTION OF THEUNITEDSTATES§991 (Ronald D. Rotunda & John E. Nowak, eds. 1987).

21STORYCOMMENTARIES§992.

22Id.

23Id. at §990.

24Former Chief Justice Rehnquist’s Van Orden plurality presents the usual counterpoint to the mainstream approach to history. That approach is not new, but I will discuss it insofar as Justice Scalia’s approach attempts to refine it.

25See, e.g., McCreary County, 125 S. Ct. at 2742-43.

26See, e.g., County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989).

27463 U.S. 783 (1983).

28See generally ANTONINSCALIA, A MATTER OFINTERPRETATION38-40 (1997); Rutan v. Republican Party of Illinois, 497 U.S.

62, 95-96 (Scalia, J., dissenting).

29See Rutan, 497 U.S. at 95-96 (Scalia, J., dissenting).