Understanding the Establishment Clause: A Revisit

Some sixteen years ago, I undertook to explore the Establishment Clause from the perspective of constitutional litigation. My purpose in doing so was to respond to what at that time had been extensive and ongoing academic criticism of the Supreme Court's Establishment Clause jurisprudence and of its decisions under that jurisprudence. A common thread running through this criticism was that the Court had failed to develop and articulate an underlying theory as to the meaning of the Establishment Clause and its function in our constitutional system. I have and continue to have a very different view of the Court's Establishment Clause jurisprudence and of its decisions under that jurisprudence. In the earlier article, I developed fully my view of the Court’s Establishment Clause jurisprudence, and it was very different from the view of most of the academic commentators at that time. Most of the academic commentators approached the Establishment Clause from a truly academic perspective. They were searching for an underlying theory of the Establishment Clause that would provide answers to all Establishment Clause questions within the analytical framework of that underlying theory and that would produce results consistent with the premises on which the theory was based. My view of the Court's Establishment Clause jurisprudence, to the contrary, was not based on the search for an underlying theory or on the perceived absence of such a theory in the Court's Establishment Clause jurisprudence. Rather, my view had been formed by my experience as a constitutional litigator in litigating and advising on Establishment Clause issues and in trying to bring this experience to bear in explaining the Establishment Clause to my students.It was my submission that when one looked at the Establishment Clause from the perspective of constitutional litigation, it was indeed possible to ascertain what I referred to as the “law of the Establishment Clause.” The “law of the Establishment Clause” is not at all difficult to understand or to apply to the resolution of the Establishment Clause issues that in fact arise in practice. It is the “law of the Establishment Clause” that is used by litigating lawyers and by the courts - including the Supreme Court - to litigate and resolve these issues.The purpose of the writing then was to explain the nature and operation of the “law of the Establishment Clause.” I contended the “law of the Establishment Clause” consists of four components. First, there is an overriding principle: the Establishment Clause commands complete official neutrality toward religion. Second, there are three operative principles: the three prongs of the Lemon test. Third, there are a number of subsidiary doctrines, mostly relating to the application of the second Lemon “effect of advancing religion” prong. Fourth, and most importantly in practice, there are the Court's precedents in what I identified as the five major areas of Establishment Clause litigation: (1) religious practices in the public schools; (2) financial aid or governmental benefits to religion; (3) governmental action purportedly “advancing religion”; (4) “entanglement” or governmental interference in religious matters; and (5) preference for religion or between religions, which includes governmental action to protect the religious freedom of individuals or institutions.The “law of the Establishment Clause” then and now is found in the Establishment Clause cases decided by the Supreme Court and in the Court's opinions setting forth its reasons for deciding those cases as it did. As in other areas of constitutional law, the “law of the Establishment Clause” has developed in a line of growth through the process of constitutional litigation. Because the process of constitutional litigation consists of case-by-case adjudication of specific issues, it is not a process that readily lends itself to the development of a comprehensive underlying theory or broad, general propositions. Rather, in its case-by-case adjudication of specific Establishment Clause issues, the Court has promulgated principles and doctrines and has established precedents. These principles, doctrines, and precedents are applied in subsequent cases, where they may undergo some degree of refinement and modification. The precedents build on each other and form a “cluster of precedents” in the different Establishment Clause areas. These “clusters of precedents” are drawn upon whenever a new issue arises in a particular area; and the precedents, supplemented when necessary by applicable principles and doctrines, provide the parameters for the resolution of the new Establishment Clause issue before the Court.The “law of the Establishment Clause,” as it existed at the time of my earlier article, had been developing for almost fifty years. During this time, a large number of specific Establishment Clause issues had been resolved by the Court, “clusters of precedents” had been created in all of the major areas of Establishment Clause litigation, and principles and doctrines had been promulgated, refined, and applied in a number of contexts. As a result, it was my submission that the “law of the Establishment Clause” could be considered to be fairly settled, and that new Establishment Clause issues that would arise would be litigated and resolved within the analytical framework of the existing principles, doctrines and precedents.In the present article, I propose to revisit the “law of the Establishment Clause” in light of the Establishment Clause cases decided by the Supreme Court in the intervening sixteen years. The most salient feature emerging from this revisit is that there are now relatively few Establishment Clause cases coming before the Court. In the 15-year period between 1997 and the end of the Court’s last Term in 2012, I have only counted seven cases where the Supreme Court decided an Establishment Clause issue, including the Court’s most recent decision, which was based on both the Establishment Clause and the Free Exercise Clause. Two of these cases involved financial aid to religion. In both cases, a Court majority held that the particular form of financial aid, in one case the inclusion of parochial school students with public school students in the loan of computers and other instructional materials, and in the other, the inclusion of vouchers for tuition at parochial schools along with other financial assistance for the parents of children attending underperforming public schools, did not violate the Establishment Clause. In two other cases, decided the same day, involving public displays that included the Ten Commandments, the Court held 5-4, that one display violated the Establishment Clause, while the other display did not. In the fifth case, the Court held violative of the Establishment Clause a school district’s policy authorizing a student election to determine whether the student body wanted to have a student deliver a “brief invocation and/or message” at varsity football games. In the sixth case, the Court upheld against Establishment Clause challenge a provision of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), providing that “no government shall impose a substantial burden of a person residing [in] an institution,” unless the burden furthers a compelling governmental interest and does not by the “least restrictive means.” In the seventh and most recent case, the Court applied both the Establishment Clause and the Free Exercise Clause to find a “ministerial exception” to federal civil rights laws that precluded the application of those laws to invalidate the dismissal of a teacher at a private religious school who had been given the status of a religious official by the denomination operating the school. This was the extent of Establishment Clause decisions by the Supreme Court in a fifteen-year period. The Court’s decisions in all of these cases involved the Court’s application of the components of the “law of the Establishment Clause.” The “law of the Establishment Clause" remains fully viable as an explanation of the analytical framework under which the Court decides Establishment Clause cases.