UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 13, No. 1FALL 1989
Science, Freedom of Conscience and the Establishment Clause
Kyron Huigens(fn*)
I. Introduction
In 1976, despairing over recent decisions which seemed to "tilt the Constitution against religion," David Louisell was driven to ask: Of course we all know and acknowledge that the first amendment precludes, and rightly so, preference for any religious denomination. But is there not a core of common religious understanding at the heart of American institutions-are we not in fact, as once proclaimed, "[a] religious people whose institutions presuppose a Supreme Being?" Is there not something of a common denominator that sometimes is identified as America's civil religion?(fn1) The answer is no. Justice Douglas's dictum is simply wrong. The Constitution presupposes no Supreme Being, institutes no particular truth and contemplates a legal order that is similarly open. The establishment clause(fn2) maintains constitutional democracy on those terms by invalidating any encroachment on freedom of conscience which religion wielding the power of the state can devise.
This Article is an extended defense of that strong conception of the establishment clause. It is in part a reply to those, like Louisell, who have argued that strict construction theories of the clause "establish" something called "The Religion of Secular Humanism."(fn3) It is in part an attack on the idea that the establishment clause mandates accommodations of religion beyond what the free exercise clause requires.(fn4) It is in part an attempt to dispel the confusion in the cases on which both of those arguments rely.(fn5) Above all, however, this article is an attempt to give a definitive account of the liberal(fn6) conception of the Constitution and the clause which apologists of religion have decried for decades, but which has never played the role in the cases which those apologists, in their anxiety, ascribe to it.
Despite the fact that this article advances a strict construction of the establishment clause, I begin with a premise my religious opponents share. In construing the establishment clause, there is no refuge in the notion of neutrality. If science is taught in public schools and religion is not, then the secular has been preferred over religion. If one contends, as I do, that the Constitution mandates that preference, then the preference must be justified.
On the assumption that we can take science as a paradigm of the secular, I will argue that there is a deep congruence between the scientific method and core constitutional values which justifies granting secular ways of understanding preferential treatment over religious beliefs. Building on that congruence, this article will propose and defend a test of validity under the establishment clause which is derived from an influential theory in the philosophy of science. The test is grounded in the Constitution by its attention to a constitutional value which has been slighted in the establishment clause cases: freedom of conscience. The proposed test provides that: Legislation or executive action is invalid under the establishment clause when it has the effect of advancing belief not falsifiable in principle.
There is no harm in admitting at the outset that my account of the establishment clause bears little resemblance to the current state of the law. The current state of the law under the clause is chaos; something widely recognized.(fn7) Accordingly, part II of this Article presents a diagnosis of Lemon v. Kurtzman,(fn8) the case which framed the Court's current, inadequate, three part test.(fn9) While dispelling some of the confusion arising from Lemon might be good in itself, my main purpose is to show how the flaws of Lemon, and the resulting confusion, have been exploited by those Justices determined to accommodate religion.(fn10) I then identify a countervailing line of cases which has been completely dominated by the accom-modationist tradition.(fn11) From that countervailing line of cases, I derive my alternative test of validity under the establishment clause.(fn12)
Part III examines the case of Edwards v. Aguillard,(fn13) in which the Court overturned Louisiana's statute requiring the teaching of creationism. Issues of evidence, belief, faith and science dominated Aguillard, and that case is the best means of identifying that quality of religious belief which differentiates it from other systems, like science, which do not offend the establishment clause. I focus on Sir Karl Popper's definition of science and his notion of falsifiability in principle.(fn14)
Part IV lays out the fundamental conception of the Constitution on which the test of falsifiability rests.(fn15) As I have indicated, it is a liberal Constitution. I recast the procedural Constitution described by John Hart Ely in Democracy and Distrust as the deontological Constitution, arguing that the Constitution rests on premises similar to those underlying John Rawls's theory of justice.(fn16)
In Part V, I draw together the notions of the deontological Constitution and falsifiability in principle, establishing the fundamental connection between the establishment clause and freedom of conscience.(fn17)
Part VI applies the test of falsifiability to the cases, a process which subjects it to a useful strain and provides an opportunity to explicate its various elements.(fn18) I then address two outstanding issues in establishment clause theory in light of the test: Justice O'Connor's "no endorsement" test(fn19) and the validity of accommodations of religion not required by the free exercise clause.(fn20) Finally, I show how the test would treat the major conflicts in the case law.(fn21)
II. A Diagnosis of Lemon v. Kurtzman
In Lemon v. Kurtzman, Chief Justice Burger presented the now familiar three-part test as a distillation of prior case law. Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive governmental entanglement with religion."(fn22) Given that the cases were already marked by inconsistencies and flawed premises, the erratic results produced by the Lemon test should have surprised no one. Nevertheless, the criticism has been sharp. In practice, it has been said, the test "means everything and nothing."(fn23) Professor Kurland has called it nothing but "words, words, words."(fn24) Professor Mansfield expanded on that sentiment by writing:The principal fault with the Court's decisions under the religion clauses is their failure to come to grips with the fundamental philosophical questions that these clauses inescapably present. More often than not the necessity of confronting these questions is obscured by the incantation of verbal formulae devoid of explanatory value. . . . That legislation must not have as its "purpose" or "primary effect" the aiding or inhibiting of religion, we have learned very well, but by repeating these slogans we come no closer to understanding what is really at stake. The Court stultifies itself by repeated use of these phrases.(fn25) While largely accurate and motivated by an understandable frustration, these comments mislead in suggesting that the Lemon test is a purely arbitrary formula. The test is plainly flawed, but its flaws have causes. The test was derived from cases with their own history and logic, and it is there one must look in order to understand the test's weaknesses.
A. Everson and the Inversion of Purpose and effect
The three prongs of Lemon are not of equal importance; the effects prong is logically prior to both purpose and entanglements. Legislative purpose would be an irrelevant abstraction but for the fact that a legislature has the means to put its intent into effect. Most invalidating entanglements are created in vain attempts to avoid invalidating effects, a Catch-22 that frequently has been commented on.(fn26) This being the case, the central defect of the Lemon test is not hard to discover. It is that the Court has no clear idea what beneficial effect on religion it wishes to condemn or why.
Historically, the purpose and effect tests of Lemon are an outgrowth of the "incidental benefits" theory promulgated in Everson v. Board of Education-the first modern establishment clause case.(fn27) In Everson, the Court upheld a resolution of a New Jersey school board which reimbursed parents of Catholic school children for the cost of their children's travel to and from Catholic schools on public busses. Justice Black argued for the majority that the challenged resolution merely provided a general benefit to all its citizens which incidentally benefitted Catholic schoolchildren. He compared the transportation reimbursement to fire and police protection and access to public utilities and concluded that the resolution was valid because the establishment clause does not require the exclusion of parochial schools from general government benefits.(fn28)While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens...
