The Establishment Clause, State Action, and Town of Greece

The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is "state action." Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty.This Article argues that the state action doctrine should account for the government's distribution of private rights. Accordingly, the Constitution applies to the government's distribution of rights, but not to a private party's use of those rights.This account of state action sharpens the substantive constitutional question in a variety of constitutional contexts, but it is an especially powerful tool in religious liberty cases. For instance, in Town of Greece v. Galloway the Court focused on whether the prayers offered by chaplains before town meetings ran afoul of the Establishment Clause because either they were too "sectarian" or the setting was too coercive. The distribution principle, however, demands a more precise attribution of responsibility. Greece was responsible for hosting prayers and choosing chaplains. By contrast, the chaplains were responsible for the content of their prayers. The content of any given prayer-including whether it was too "sectarian"-should not have been attributed to the government. A better factual description of what occurred is this: Greece distributed the right to offer a ceremonial prayer. The proper constitutional analysis, therefore, would focus on whether that distribution comported with the Establishment, Speech, and Free Exercise Clauses.INTRODUCTION 406I. DISTRIBUTIONS OF RIGHTS AS STATE ACTION 412A. The Classical Model of State Action 412B. The Realist Critique 415C. A Refined Account of the State Action Doctrine 4191. A Defense of the Classical Model 4192. The Government's Distributions of Rights 4213. Agency 425II. PRIVATE CHOICE 428A. The "Private Choice'' Test in School Aid Cases 429B. Rethinking Zclman and State Action 4301. Two Ways to Misconceive the State Action Question 4312. The Distribution of Educational Liberty 4333. The Substantive Question: Impermissible Incentives? 434III. RELIGIOUS SPEECH 436A. Town of Greece 437B. Whose Speech, Which Speaker? 440C. Ceremonial Public Prayer as a Very Limited Public Forum 443D. The Remaining Questions 4461. Religious Affirmative Action? 4462. A Duty of Supplemental Speech? 447IV. RELIGIOUS ACCOMMODATION STATUTES 448CONCLUSION 450INTRODUCTIONEstablishment Clause cases often turn on a question the Supreme Court usually ignores: Is the religious exercise at issue attributable to the government or to a private party? The requirement of "state action," which the Constitution applies only to government conduct,1 is especially important in cases involving religious exercise. "Precisely the same conduct-leading prayers, for example-is constitutionally valued and protected if engaged in by private parties, though unconstitutional if done by the government."2When religious exercise results from cooperation between the government and a private party, allocating responsibility can be challenging. Rather than asking which party is responsible for the religious exercise before applying substantive constitutional law, courts and theorists too often merge the issue with an Establishment Clause analysis. …