Federalism and the Establishment Clause: a Reassessment

• Jurisdiction: United States,Federal
• Citation: Vol. 38
• Publication year: 2022

38 Creighton L. Rev. 761. FEDERALISM AND THE ESTABLISHMENT CLAUSE: A REASSESSMENT

Creighton Law Review

Vol. 38

STEVEN K. GREEN(fn*)

The separationist approach to Establishment Clause adjudication has been under attack ever since it was first announced in 1947.(fn1) Over the last twenty years, however, separationism has faced an onslaught of competing theories, such as accommodationism, nonprefrentialism and a coercion standard.(fn2) The latest challenger to separationism is the neutrality theory of evenhanded treatment of religious and nonreligious entities.(fn3) As described by the Supreme Court, "programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not subject to an Establishment Clause challenge."(fn4) Most criticism of the Court's neutrality approach has centered on its application in free exercise cases, with scholars on both the right and left condemning the abandonment of strict scrutiny review of government burdens on religious practice.(fn5) The application of neutrality principles in the Establishment Clause context has also elicited criticism from within the Court and the academy.(fn6) Justice Thomas' sweeping plurality opinion in Mitchell v. Helms (2000) touting program neutrality as the sine qua non of constitutionality led Justice O'Connor to condemn the "unprecedented breadth" of the ruling(fn7) and Professor Erwin Chemerinsky to call it "a radical and unprecedented shift in the law of the Establishment Clause."(fn8) But a Court majority stepped back from relying solely on neutrality in Zelman v. Simmons-Harris,(fn9) the Cleveland voucher case, and all but ignored it as the controlling principle in Locke v. Davey,(fn10) the Washington college scholarship program closed to theology majors. Still, neutrality is on the ascent, at the expense of separationist principles, leading some to speculate whether we are witnessing the "lingering death of separationism" as an organizing principle for resolving Establishment Clause controversies.(fn11)

While separationism will likely hold its own against neutrality,(fn12) a more subversive challenger has arisen - or to be more accurate, has been resurrected - one that if adopted, would truly represent "a radical and unprecedented shift in the law of the Establishment Clause."(fn13) In two recent concurring opinions, Justice Thomas has thrown down a new/old gauntlet to separationism: federalism. In Elk River School District v. Newdow, the 2004 Pledge of Allegiance case decided on standing grounds, Thomas argued "the Establishment Clause is a federalism provision, which, for this reason, resists incor-poration."(fn14) As Justice Thomas went on to explain, the "text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments [of religion.]"(fn15) Under this approach,

[I]t may well be that state action [in the Establishment Clause context] should be evaluated on different terms than similar action by the Federal Government. . . . Thus, while the Federal Government may "make no law respecting an establishment of religion," the States may pass laws that include or touch on religious matters so long as those laws do not impede free exercise rights or any other individual religious liberty interest.(fn16)

Thomas' call for a federalism constraint on the application of the Establishment Clause is not new and not necessarily tied to the Rehnquist Court's federalism revival involving the Commerce Clause and Tenth and Eleventh Amendments.(fn17) Ever since the Court incorporated the Establishment Clause in 1947,(fn18) critics have charged that freedom from religious establishments does not constitute an individual liberty interest protected by the due process clause of the Fourteenth Amendment.(fn19) Some have gone further to argue that rather than intending for the Establishment Clause to forbid a host of government practices "respecting an establishment of religion," the framers consciously designed the clause to leave the then existing state religious establishments intact. As such, according to one critic's writing in 1954, the First Amendment "is not only an express guarantee of personal religious freedom against the threat of federal action, but also an application of the principle of federalism . . . . The two [religion] clauses together were intended to remove the subject of religion completely from the federal competence."(fn20)

The popularity of the federalism argument waned under the weight of subsequent Establishment Clause holdings. In the second school prayer case, a dissenting Justice Stewart half-heartedly asserted: "the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church but would also be unable to interfere with existing state establishments."(fn21) But by then, Stewart stood alone in his belief, with Justice Brennan replying that the argument was coming too late in the day and had been rendered irrelevant by the passage of the Fourteenth Amendment.(fn22) Still, the argument lingered throughout the 1960s and 1970s. In a 1978 monograph popular in conservative circles, Michael Malbin reviewed the various proposals for the Establishment Clause and concluded that the final language selected - "a law respecting an establishment of religion" - was designed to prohibit Congress from passing law that would affect the religious establishments in the states.(fn23)

While stressing the federalism aspect to the Establishment Clause, all of these earlier critiques acknowledged that the framers likely believed the clause served other purposes, such that federalism was only one of several possible understandings.(fn24) Scholars who otherwise supported the Court's separationist holdings also conceded that, based on the existence of state establishments in 1789, federalism considerations likely informed the framers' thinking.(fn25) However, in the late 1980s, a new round of federalism critiques arose, only this time the authors made claims that federalism represented the sole or overriding consideration of those who drafted the Establishment Clause. Professor Daniel Conkle, after tracing the disparate views in the various new states toward church-state relationships, asserted the following:

[G]iven this widespread and deep division, how could Congress and the ratifying state legislatures have reached agreement on the Establishment Clause? It was supported, after all, both by separationists and by those who were committed to programs of state-sponsored religion. These various political actors simply could not have agreed on a general principle governing the relationship of religion and government . . . What united the representatives of all the states, both in Congress and in the ratifying legislatures, was a much more narrow purpose: to make it plain that Congress was not to legislate on the subject of religion, thereby leaving the matter of church-state relations to the individual states. This purpose honored the anti-establishment policies of states such as Virginia, but it also protected the existing state establishments from congressional interference. The appropriate breadth - or at least the appropriate phrasing - of the Establishment Clause was a matter that received considerable attention in the First Congress, but primarily as an issue concerning the appropriate means for effecting a policy of federalism on questions of church and state.(fn26)

Professor Gerard Bradley made a similar argument: that the final language of the religion clauses "tracked the federalist view that Congress had no enumerated authority over religion in the first place, as well as the basic anti-federalist endeavor to preserve existing state constitutional regimes from intermeddling federal legislation."(fn27) In essence, according to this argument, the only point of consensus among these disparate interests was one of federalism: to exclude federal authority over all religious matters, leaving all regulation, pro and con, to the states.(fn28) Moreover, due to the impossibility of consensus on a meaning among the framers, the clause lacks a substantive quality - that it is primarily if not solely a jurisdictional device. This latter theme was subsequently developed by two prominent scholars, Steven Smith and Akhil Amar, whose books in the mid-1990s reinvigorated the federalism issue. According to Smith, "[t]he religion clauses were understood as a federalist measure, not as the enactment of any substantive principle of religious freedom."(fn29) Amar concurs that "as originally written, [the Establishment Clause] stood as a pure federalism provision . . . [T]he clause was utterly agnostic on the substantive issue of establishment; it simply mandated that the issue be decided state by state and that Congress keep its hands off, that Congress make no law respecting the vexed question."(fn30)

The implications of this critique are obvious. Most immediately, it suggests that the search for an inherent meaning to the Establishment Clause is fruitless, "foreordained to failure" to use Steven Smith's phrase.(fn31) And, it follows, if there is no substantive meaning to the Establishment Clause, then all of the Court's church-state holdings, at least those where the Court has relied on a historical interpretation of the clause...