Corruption of religion and the establishment clause.

• Author: Koppelman, Andrew

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. This difficulty has received almost no attention, (4) but it poses a fundamental challenge to the coherence of Establishment Clause jurisprudence.

This Article will elucidate the difficulty and show how it can be answered. The Framers' specific idea of the "religion" that must be protected from corruption has been supplanted by a different idea of religion, one that resists definition yet is quite clear in application. There is, in contemporary American culture, a proliferation of different understandings of the good of religion. Yet, despite this proliferation, we generally know religion when we see it. Many people who are divided by these understandings converge on the idea that the object of their contestation will be damaged and degraded by state interference with it. Thus clarified, the corruption rationale can explain many otherwise mysterious aspects of modern Establishment Clause law--notably, the peculiar rule, which has recently been formally stated for the first time, that older acknowledgements of ceremonial deism are probably constitutional, whereas newer ones will be invalidated. It also offers a new justification for that rule--one that is not really new, because it has been around for 350 years, but which has been obscured by the neo-Rawlsian approach that is now so prominent in contemporary writing on religious liberty.

Part I of this Article explores the gap in contemporary constitutional theory, and how the corruption argument can remedy it. Part II examines the way in which the corruption argument depends on a claim that religion is, in some way, a good thing. It also shows why this claim is hard to cognize from within the framework of neo-Rawlsian political theory. Part III describes the classic formulations of the claim, primarily by the founding generation. Part IV enumerates the central claims of the corruption thesis, showing how those claims are closely tied to its religious roots, and thus apparently presenting an insuperable Establishment Clause obstacle to a court's making those claims. It also shows the failure of Justice Antonin Scalia's attempt to resolve this difficulty. Part V proposes a revision of the idea that separates it from its Protestant roots. Part VI responds to objections (including Rawlsian ones) to that proposal. Part VII shows how the reformulation offered here makes sense of the law.

1. THE GAP IN ESTABLISHMENT CLAUSE THEORY

   Consider some familiar and well-settled rules of Establishment Clause law. The state may not engage in speech that endorses a particular religion, or religion generally. (5) It may not use a religious test for office. (6) A law is invalid if it lacks a secular legislative purpose, (7) or if it purposefully discriminates against certain religious practices. (8) Laws may not discriminate among religions. (9)

   A theme that runs through this area of the law is the state's incompetence to decide matters that relate to the interpretation of religious practice or belief. The state may not attempt to determine the "truth or falsity" of religious claims, (l0) courts may not try to resolve "controversies over religious doctrine and practice," (11) may not undertake "interpretation of particular church doctrines and the importance of those doctrines to the religion," (12) may make "'no inquiry into religious doctrine,'" (13) and may give "no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith." (14)

   Yet, at the same time, there is a broad range of official religious practices that are tolerated. "In God We Trust" appears on the currency, legislative sessions begin with prayers, judicial proceedings begin with "God save the United States and this Honorable Court," Thanksgiving and Christmas are official holidays, and, of course, the words "under God" appear in the Pledge of Allegiance. The boundaries of this permitted "ceremonial deism" are unclear. Prayers in school are unconstitutional, but not moments of silence. (15) The Supreme Court's most recent set of decisions is particularly confusing, holding that an official Ten Commandments display is unconstitutional if it was erected recently, but not if it has been around for decades. (16)

   Any account of the Establishment Clause needs to explain these apparent inconsistencies. One can write them off as unprincipled compromises, and many have. (17) But it is possible to do better than that.

   The Establishment Clause has multiple purposes, (18) so any argument about the basis of the Clause is going to be about what to emphasize. Two accounts of the purposes of the Establishment Clause dominate contemporary theory. One of these, whose leading proponent was Chief Justice Warren Burger, focuses on political division. (19) The other, principally articulated by Justice Sandra Day O'Connor, focuses on alienation. (20) Doubtless these concerns are among those that underlie the Establishment Clause. But a theory that makes them central cannot explain or justify the specific rules of law described above.

   1. The Political Division Theory

      Chief Justice Burger argued that a state program could be unconstitutional because of its "divisive political potential." (21) This mattered because "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect." (22) Such division constituted "a threat to the normal political process," (23) and "could divert attention from the myriad issues and problems that confront every level of government." (24) This argument has often been invoked in Supreme Court opinions, though it is unclear that it has done any analytical work in deciding cases. (25)

      The most fundamental defect with this argument, as a basis for a constitutional rule, is that political division is an unavoidable part of life in a democracy. This division will frequently take the form of religious division. (26) It is not clear why division along religious lines is worse than divisions along lines of race, gender, age, ethnicity, or economic class. (27) As a standard for constitutionality, the division criterion is not...