Outsiders, Swing Justices, and Original Understanding: Can the Religion Clauses Be Saved? a Comment on Greenawalt

I have known Kent Greenawalt for many years and have great admiration and respect for him. He is a wonderful colleague, a kind and generous man, and an exceptionally dedicated scholar. In his piece,1 he does a splendid job articulating the recently-dominant Supreme Court doctrines with regard to free exercise and establishment, and I have no quarrel with his exposition. Where I differ with him is over what I take to be his plea for the revival or reinvigoration of these doctrinal tests for determining whether unconstitutional actions have occurred. In particular, Greenawalt embraces the Lemon test2 for determining if establishment clause violations have occurred, and the recently-rejected "compelling interest" test for determining if "free exercise" rights have been violated.3 His preferred application of those tests would, if I am reading him correctly, permit substantial expansion of individual free exercise rights and would allow as well great expansion of the category of activities that the courts could reject as unconstitutional establishments of religion. Taken together, Greenawalt's explication of the Free Exercise and Establishment Clauses, and his criticism of the narrow manner in which the Rehnquist Court has read both clauses, suggest that he believes that these provisions were designed so as to not make any American feel like an "outsider." My reading of the history of these clauses suggests, however, that they were drafted for two quite different purposes: (1) to make sure that religion is enabled to serve as the inescapable foundation for good government, and (2) that when choices are to be made about how to use religion for that purpose, more often than not, the choices are to be made by the states or localities, not the federal government. Perhaps it is true that at least some members of the Supreme Court view the purpose of the religion clauses in the manner that Greenawalt does,4 but if they do, they have come a long way from the view of the Constitution's Framers. Those Framers believed that it was impossible to have order without law, that it was impossible to have law without morality, and that it was impossible to have morality without religion.5 They did not believe in imposing a particular Christian sect on all the citizens of our republic, but since, at the time the First Amendment was passed, three states had state-supported established churches, and virtually all of them had religious qualifications for the exercise of the franchise or the holding of public office, it makes no sense to believe that the original conception of the First Amendment was the strict separation of church and state usually associated with the political philosophies of Thomas Jefferson and James Madison.6 Indeed, one of the most important near-contemporary commentators on the Constitution, Joseph Story, took the position that it was the duty of all American governments to promote Christianity because it was a fine means of securing the morality and religion necessary for any "civilized society."7 If there is anything that should now be beyond debate, then, it is that the original understanding of the Constitution did not demand the kind of strict separation Jefferson and Madison may have argued for, since that strict separation simply wasn't the case at the beginning, or for most of our history. This is the theme of Philip Hamburger's recent book,8 with which Greenawalt appears to have some difficulty.9 But Hamburger is by no means the first to make this point. The real history of the religion clauses has been explored by many other scholars, including Steven Smith,10 Mary Ann Glendon and Raul F. Yanes,11 Daniel Dreisbach,12 and even your commentator.13 All of us have come to understand, as did the Framers, that a prime purpose of the First Amendment in particular and the Bill of Rights in general was to circumscribe the operation of the federal government, and to preserve the prerogatives of the state and local governments. …