The Establishment Clause Gag Reflex

Last summer, I attended a dinner with some law professors who write about Religion Clause issues. It is a measure of our lack of imagination that we spent most of the evening talking about-you guessed it-Religion Clause issues. As the conversation progressed, I found myself defending the results in various cases on what I described as "realist" grounds-that is, not on the basis of supposedly "neutral principles," but by reference to my assessment of the kinds of church-state interactions that most Americans would tolerate. At one point in the conversation, someone suggested-and to date no one has been willing to accept credit or blame for it-that I was relying on an "Establishment Clause gag reflex." The conventional way of titling a paper is to write the paper first, then to choose a title that captures and communicates the paper's thesis. But I was so taken with the idea encapsulated within this phrase-the Establishment Clause gag reflex-that when I was asked to participate on this panel, I decided that this would be my title, around which I would write the paper. The Establishment Clause gag reflex is an instinctive intellectual revulsion to the possibility of particular resolutions of Establishment Clause cases. Though not a doctrinal rule, it emphasizes important constitutional instincts about the Establishment Clause when the apparently correct doctrinal resolution of a case seems untenable. In medical terms, the "gag reflex" refers to the normal choking or retching reflex "caused especially] by stimulation (as by touch) of the pharynx."1 The term derives from the verb "to gag," which means to nauseate or to choke,2 combined with the noun "reflex," which refers, among other things, to "an act . . . performed automatically and without conscious volition in consequence of a nervous impulse."3 As an involuntary physical response, the gag reflex is often grouped with other so-called "unconditioned" physical responses that share the characteristic of being "automatic instinctive unlearned reaction[s] to [some] stimulus."4 "Gag" and "gag reflex" have long had figurative as well as physiological meanings. In fact, figurative usage is quite evident on the Internet-there is an apparent competition among a certain class of bloggers5 to see who can publicize the most disgusting anecdotes-that is, anecdotes that might make one gag. These entries are typically posted with "gag reflex" in the title or subject line, so they pop right up in a Google search. (I will spare the reader the actual examples, but they provide yet another illustration of the wondrous information that the digital revolution has placed at our fingertips.) In a more conventional vein, the Oxford English Dictionary includes a number of figurative usages of the verb "to gag," including one from a nineteenth-century dictionary-"to reject with loathing"6-and this suggestively obsessive one from John Steinbeck: "The idea gagged him, but he couldn't let it alone."7 In its figurative sense, then, "gag reflex" refers to an immediate, intellectually instinctive reaction of disgust or rejection when confronted with a distasteful idea, event, or situation. A constitutional gag reflex would refer to the instinctive intellectual revulsion one might feel in response to the doctrine or holding of a case. One would hope, for example, that a contemporary judicial decision that countenanced permanent denial of citizenship to racial minorities8 or that denied such minorities the liberty or equality rights enjoyed by whites9 would induce a collective "gag" by most Americans. The constitutional gag reflex functions rhetorically much like the "parade of horribles," in which one typically lists all of the ostensible horrors that would follow from the outcome one opposes. Justice Scalia relied on this technique to good (if controversial) effect in Employment Division v. Smith.10 However, the parade of horribles derives its rhetorical force as much from the length of the parade as from its participants, whereas the constitutional gag reflex is triggered by a sole potentiality whose singular undesirability is so obvious that its mere possibility causes one instinctively to shudder, albeit intellectually. …