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The Existential Establishment Clause: How does that make you feel?

Center for Law and Policy

The Existential Establishment Clause: How does that make you feel?

Brian Fahling, Esq.
Senior Trial Attorney

Tuesday, July 05, 2005

I 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 religion.

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.

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 resolution.

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 offended.

The effect of this Freudian standing requirement is to make ?establishment a function of personal perceptions or feelings rather than an abuse of government power."

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 the hyper-sensitive.

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:

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.

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.



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Thursday March 03, 2011 05:05 PM -0500