|Center for Law and Policy
The Existential Establishment Clause: How does that make you feel?
Senior Trial Attorney
Tuesday, July 05, 2005
am a constitutional lawyer, but I must confess that a law degree seems to
be the single most irrelevant credential one can offer in favor of
understanding Supreme Court opinions dealing with the Establishment
Clause, a clause intended to prevent the creation of a national church or
That is not to say the Court does not sometimes talk in legal language in
these cases, it does. But legalese merely veils, albeit thinly, the
Court?s decidedly non-legal approach to analyzing Establishment Clause
cases. The Court?s two recent Ten Commandments decisions are no exception.
Most commentators trace the source of the Court?s muddled Establishment
Clause jurisprudence back to Justice Hugo Black?s deployment of
Jefferson?s now (in)famous ?wall of separation? metaphor in the 1947 case
of Everson v. Board of Education. Though in that case, the
so-called ?wall of separation? between church and state was not so high as
to prevent public funding of the transportation of New Jersey pupils to
and from both public and parochial schools.
Still, the ?wall of separation? metaphor is, I think, more a symptom of,
rather than an explanation for the bizarre path taken by the Court in
Establishment Clause cases. The real explanations are unfamiliar to most
Americans, if not most lawyers.
For the 150 years before the Everson decision, the Court recognized
that the religion clauses did not apply to the states:
The Constitution makes no provision for protecting the citizens of
the respective states in their religious liberties; this is left to the
state constitutions and laws: nor is there any inhibition imposed by the
Constitution of the United States in this respect on the states.
This explanation about the reach of the clauses given by the Court in
the 1845 case of Permoli v. New Orleans, is probably news to most
Americans. Just the same, a reading of the First Amendment, which states
that ?Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof,? explains why the
Court did not hesitate to find that the religion clauses, like the rest of
the Bill of Rights, are not applicable against the states.But here, complainant's son may join religious classes if
he chooses and if his parents so request, or he may stay out of them. The
complaint is that when others join and he does not, it sets him apart as a
dissenter, which is humiliating. Even admitting this to be true, it may be
doubted whether the Constitution which, of course, protects the right to
dissent, can be construed also to protect one from the embarrassment that
always attends nonconformity, whether in religion, politics, behavior or
dress. Since no legal compulsion is applied to complainant's son himself
and no penalty is imposed or threatened from which we may relieve him, we
can hardly base jurisdiction on this ground.
How, then, did the Court get from there to micromanaging, via the
Establishment Clause, every allegedly religious activity undertaken by the
various states? Answer: The Incorporation Doctrine.
The Incorporation Doctrine was invented by the Court, and it rests upon
the dubious premise that the first eight amendments to the Constitution
are magically incorporated through the due process clause of the
Fourteenth Amendment, which does apply against the states.
To spare the reader the tedium of recounting the overwhelming historical
and constitutional evidence against this tortured argument, I will instead
let Justice Frankfurter summarize the argument against incorporation: "The
notion that the Fourteenth Amendment was a covert way of imposing upon the
States all the rules which it seemed important to Eighteenth Century
statesmen to write into the Federal Amendments was rejected by judges who
were themselves witnesses of the process by which the Fourteenth Amendment
became part of the Constitution."
To be sure, the invention of the Incorporation Doctrine does not explain
the particular interpretive path taken by the Court in Establishment
Clause cases. It is, however, highly suggestive of a jurisprudence that is
completely untethered from constitutional text and history.
Unshackled, so to speak, from the chains of the Constitution, Justices
have felt free to fashion tests and change rules in a manner that permits
them to arrive at outcomes agreeable with their personal judgment, if not
with constitutional law.
But while rewriting the Constitution in order to make the Establishment
Clause apply against the states made it possible for the Court to
interpose itself into state matters involving religious issues, it could
not create cases in the states that would be brought to the Court for
The hurdle faced by the Court if it was going to make its inhospitable
view of religion a matter of national policy came in the form of a legal
doctrine called ?standing.? In order to have a viable legal claim, an
individual must have standing.
To have standing, you must have some concrete personal injury, not a
speculative injury or merely psychological discomfort. This is the
absolute rule in every area of law.
But by this standard, standing to bring an Establishment Clause claim
would necessitate, for example, that an individual actually be required to
submit to some religious rite or instruction, or be sanctioned or
threatened with some sanction for resisting such an unconstitutional
condition. In other words, coercion would be required.
Since cases of coercion are extremely rare, the Court would have been left
with precious few cases to adjudicate under the Establishment Clause
unless, that is, it changed standing requirements.
So, standing requirements were changed by the Court, but only for
Establishment Clause cases. The Court changed the requirements so that
individuals could challenge government expression solely on the grounds
that the government action makes them feel excluded, stigmatized, or
The effect of this Freudian standing requirement is to make ?establishment
a function of personal perceptions or feelings rather than an abuse of
Common sense, not to mention constitutional law, counsel that a rule of
law should not be drawn from personal angst. Nevertheless, we now we have
an entire body of constitutional law constructed from the fulminations of
We live in a country where Dr. Phil is better qualified than Supreme Court
Justices to hear Establishment Clause cases.
In his concurring opinion in McCollum v. Board of Education in
1948, Justice Jackson, despite voting to strike the ?released time?
program at issue in that case, expressed reservations about a
jurisprudence rooted in existential discomfort:
Justice Jackson?s reservations notwithstanding, the Court?s
Establishment Clause standing requirements have turned a principle of law
into little more than a Rorschach test for the histrionic.
So, if you really want to understand the Court?s Establishment Clause
cases, don?t go to law school, take some psychology classes instead.
Or, just ask yourself how it makes you feel.