Corruption of Religion and the Establishment Clause

ABSTRACT Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This Article explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion. If the religion-protective argument for disestablishment is to be useful today, it cannot be adopted in the form in which it was understood in the seventeenth and eighteenth centuries, because in that form it is loaded with assumptions rooted in a particular variety of Protestant Christianity. Nonetheless, suitably revised, it provides a powerful reason for government, as a general matter, to keep its hands off religious doctrine. It offers the best explanation for many otherwise mysterious rules of Establishment Clause law. TABLE OF CONTENTS I. THE GAP IN ESTABLISHMENT CLAUSE THEORY A. The Political Division Theory B. The Alienation Theory C. The Comparative Strength of the Corruption Argument II. "CORRUPTION" AND THE FREE EXERCISE/ESTABLISHMENT DILEMMA III. THE CLASSIC FORMULATIONS OF THE CLAIM A. Precursors 1. John Milton 2. Roger Williams 3. John Locke 4. Samuel Pufendorf 5. Elisha Williams B. The Founding Generation 1. Isaac Backus 2. Thomas Jefferson 3. Thomas Paine 4. John Leland 5. James Madison C. Other Formulations 1. Adam Smith 2. Alexis de Tocqueville 3. The Fourteenth Amendment 4. Hugo Black IV. THE TROUBLESOME RELIGIOUS ROOTS A. The Claims Distilled B. Scalia's Reformulation V. A PROPOSAL A. Defining Religion B. The Shaping of Modern Religion VI. OBJECTIONS VII. UNDERSTANDING THE RULES CONCLUSION Laws, especially those with ambiguous language, are interpreted in light of their purposes. (1) The Establishment Clause of the First Amendment, which states that "Congress shall make no law respecting an establishment of religion," is an example. (2) One of its core purposes was to prevent the corruption and degradation of religion that the Framers associated with religious establishments. The Clause, the Supreme Court has said, "stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate." (3) This rationale has been neglected in modern Establishment Clause theory, but it can explain and justify the shape of our law better than the prevention of division along religious lines or of alienation, which are the themes that dominate contemporary thought about disestablishment. The corruption rationale has a problem, however. It cannot be imported without modification into modern jurisprudence. Any notion of "corruption," "degradation," or "perversion" implies a norm or ideal state from which the degradation or perversion is a falling off. That paradoxically raises Establishment Clause problems of its own. A claim that "we ought not to do A, because A is bad for B" implies that (1) B is a good thing, and (2) we can tell what is good and what is bad for B. Thus, any invocation of the corruption rationale presupposes both that religion is a good thing and that we can tell what is good and what is bad for religion. For example, the Framers' understanding of the corruption rationale relied on Protestant or Deist understandings of what uncorrupted religion consisted in. No court today could embrace those understandings without engaging in precisely the kind of intervention in live theological controversy that the Clause was intended to forestall. …