Federalism and faith redux.

• Author: Lupu, Ira C.

One key structural feature of American government that may facilitate ordered liberty is federalism. In this Essay, I discuss one way that religious liberty relates to American federalism, and how conceptions of religious liberty might be revised in light of federalism. That relationship currently unfolds in many ways, including the difference between the level of state constitutional protection of the free exercise of religion and the level of federal protection. My focus in this piece, however, is the way the religion clauses of the First Amendment apply to the states. The application of these clauses to the states, of course, determines the precise content of federal constitutional control over the explicit religion-based and religion-influencing policies of state and local governments.

What consequences for the states, and for the climate of religious liberty, would follow from relaxing that control? There are two possible forms that relaxing federal control could take. First, the Supreme Court could just shrink the ambit of the religion clauses as applied to all levels of government. The consequence of such a move would be to lessen the force of the clauses with respect to the federal government as well as to state and local governments. This relaxation would be a substantive path to change, and the Supreme Court has, as of late, traveled it to some extent. (1) Second, and more radically, the Supreme Court might disincorporate--that is, hold that the states are no longer bound by--one or both of the religion clauses.

Disincorporation is not likely to happen, but it is far from a crazy idea. Indeed, disincorporating the Establishment Clause is quite plausible as a matter of text and history. The First Amendment begins "Congress shall make no law respecting an establishment of religion," (2) and that language is at least consistent with a dual policy of prohibiting the creation of any national church and protecting against federal interference with the state establishments that existed as of 1791. (3) From the bench, Justice Thomas has recently and explicitly advanced the notion that the Framers intended the Establishment Clause to leave the states with discretion about how best to promote religion, and that the Clause should not, therefore, limit the states: From the academic side, Justice Thomas finds support in the work of Professor Akhil Reed Amar, who has advanced this two-directional-simultaneously state-protecting and nation-limiting--view of the original meaning of the Establishment Clause:

There are, of course, quite serious arguments from history, (6) text, (7) and precedent as to why disincorporation would be a deeply wrong-headed move. Nevertheless, an honest account would have to acknowledge that the Supreme Court has never really addressed the question in the full detail it deserves. Without serious discussion, the Court simply asserted in Everson that the Establishment Clause applied to the states because the rest of the First Amendment so applied. (8)

The focus of this Essay, however, is not the issues of textual interpretation or history on which Justice Thomas bases his dissent from the long-prevailing view on this question. Instead, I will explore the consequences that might follow from taking Justice Thomas's views on disincorporating the Establishment Clause seriously. Would such a move advance or impede the cause of religious liberty?

Before we can even start to answer that question, we should note that virtually every state has its own constitutional provision that replicates at least some Establishment Clause functions. (9) Some are anti-funding provisions, placed in many state constitutions in the nineteenth century and aimed primarily at state funding of religious schools. (10) Others, like the Virginia Constitution, forbid compelling anyone to support or attend any religious ministry. (11) Those limitations, as construed by state courts and attorneys general will continue to exist regardless of whether the federal Establishment Clause applies to the states.

Moreover, the cultural and political clock cannot be turned backwards, even if the legal clock can be. The experience of sixty years of Supreme Court decisions, applying an incorporated Establishment Clause to the states, has produced constitutional norms that would be very difficult to erase from our culture even if the Establishment Clause were disincorporated tomorrow. State courts might forbid school-sponsored prayer under state constitutions, for example, even if the First Amendment no longer required such a prohibition.

Nevertheless, it is worth exploring the consequences of disincorporation through the prism of Justice Thomas's explicit...