Ira C. Lupu & Robert W. Tuttle, Federalism and Faith

• Publication year: 2006

FEDERALISM AND FAITH

Ira C. Lupu^*

Robert W. Tuttle^**

Throughout history, religion has been a powerful force, capable of producing immense and transformative social change. At its best, religious commitment may facilitate advances in culture and humane improvements in the quality of life. At its worst, religious fervor may lead to abiding animosities and destructive conflict. Consequently, those who design institutions of civil government must take care to articulate a set of policies on the subject of religion. In a government for a religiously homogeneous and geographically compact area-a small city-state, for example-the policies are likely to tend toward a simple or unitary approach. As the area under governance grows larger, religious pluralism increases, and the structure of the polity becomes more complex, religion policies too are likely to develop multiple layers, inner tensions, and rich subtleties.

This movement toward a more complex governmental structure, and a multi-textured set of religion policies, is reflected in the history of the United States. What started as a collection of relatively homogenous communities- the Massachusetts Bay Colony, for example¹-evolved into a diverse set of colonies, each having some degree of religious pluralism and its own distinct arrangements on the subject of religious practices and institutions. As those colonies declared their independence from Great Britain, each of them struggled to define its own religion policies, and to articulate those norms in a state constitution, other founding documents, or statutory enactments on the status of religious institutions.²Simultaneously, these new states became engaged in the enterprise of nation-building, which ultimately involved a collective effort to shape religion policies for the new national government.

From the beginning, the relationship between the religion policies of the national government and those of the states contained the seeds of conflict. Prior to the creation of the Bill of Rights, the most obvious conflict involved Article VI's prohibition on the use of a "religious Test" as a "Qualification to any Office or public Trust under the United States."³This provision prevented the states from limiting to persons of a particular faith the state's choice of federal representatives, senators, or presidential electors. Thus, even if a state's own internal religion policy, as specified in its constitution, limited elected office to those who professed a particular creed,⁴the Federal Constitution required that state's policy to give way with respect to its federal officers.

With the passage of the Bill of Rights, the opportunities for conflict between federal and state religion policies expanded considerably. Article VI is limited to the narrow context of office holding, but the First Amendment's religion clauses, like the religion clauses of the various state constitutions, address the entire range of government authority on the subject of religion. This expanded ambit of the relevant provisions, state and federal, did not produce actual conflict until the dramatic revision of federal-state relations in the wake of the Civil War and Reconstruction. With the Fourteenth Amendment in place, and a new national understanding of the role and the authority of the federal government in preserving national unity and individual freedom, the stage was set for the ensuing struggle over federal limitations on state power to formulate religion policy.

This Article explores the intersection of federal and state policy on the subject of religion. From the middle of the twentieth century until quite recently, the dominant force in that intersection has been the Supreme Court's interpretation of federal constitutional law. That interpretation has included, at least since 1947, the full incorporation of both the Establishment Clause and

Free Exercise Clause into the Fourteenth Amendment.⁵Thus, states, like the federal government, may make "no law respecting an establishment of religion, or prohibiting the free exercise thereof."⁶Under the doctrine of incorporation, as it now stands, the states and the federal government operate under identical restrictions with respect to the subject of religion. Moreover, for much of the last half of the twentieth century, the Court's interpretations of both religion clauses imposed rather substantial restrictions on all levels of government. These included stringent limitations on direct financing of religious education,⁷a firm prohibition on state-sponsored prayer or other religious observance in public schools,⁸and at least some degree of obligation under the Free Exercise Clause to accommodate religious practices burdened by government policies.⁹

The structure of the religion clauses adds an additional complication to the analysis of federal-state relations on the subject of religious faith and practice. The clauses approach the problem of religion policy from two distinct angles. One clause, requiring nonestablishment, constrains government in its attempt to create a religious identity for itself; the other clause, protecting free exercise, shields individuals against government coercion that affects private religious practice. This pairing presents a constitutional strategy that appears nowhere else in the Bill of Rights. Most sections of the Bill are rights-protecting only; they create, in the conventional terminology, federal floors under certain entitlements, while permitting the states to protect such rights more strenuously against state interference.¹⁰But this image of a federal floor beneath rights against the states, without federal constraint on the state's power to promote the same rights, does not fit the structure of the religion clauses because the Establishment Clause may limit the state's power to accommodate private religious freedom, or otherwise to promote the cause of faith. The religion clauses thus create both a floor under and a ceiling over the formulation of religion policy by the states. When the content of the religion clauses expands, the floor rises and the ceiling lowers, creating the peril of constitutional claustrophobia for any state-based religion policy.¹¹

The combination of incorporation of the religion clauses, substantial limitations on government imposed by the clauses, and a pair of clauses that create both a floor under rights and a ceiling on some forms of promotion of those rights has been triply disabling to the states in the development of their own, independent religion policies. By the 1970s and 1980s, states that had a rich version of such policy for the first two thirds of our national history found themselves thoroughly hamstrung.¹²And it is no surprise that states, finding themselves in such a role, have become enervated in their own initiatives as independent policymakers in the field of religion. Though occasional exceptions have appeared, state and local officials-especially in matters of education¹³-have tended to internalize the notion that federal law confines their every move on this subject.

Over the past twenty years, however, the Supreme Court has in a number of contexts relaxed its interpretations of the religion clauses, thus giving all levels of government greater freedom to act with respect to religion. In addition, one sitting Justice has recently and repeatedly challenged the doctrine of incorporation as applied to the Establishment Clause.¹⁴And a number of

Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977). commentators have similarly argued that the Establishment Clause should never have been applied to the states,¹⁵or that courts should apply a relaxed version of the religion clauses to government beneath the federal level.¹⁶In addition to the arguments based on original intent, these commentators suggest that states are less threatening to religious liberty than the federal government,¹⁷or that smaller units of government are more likely than the nation as a whole to represent worthwhile enclaves of community, in which religion may play an important part.¹⁸

These developments and arguments-all of which tend (or, if implemented, would tend) to expand the discretion of state and local policymakers on the subject of religion-have set the stage for a focused reconsideration of federalism and faith. In what follows, we proceed to such a reconsideration. Part I offers a succinct look at federal-state relations on the subject of religion prior to Reconstruction. Part I.A touches on the position of the states prior to the ratification of the 1789 Constitution; Part I.B discusses the impact of the Constitution, as originally ratified, on state religion policy; and Part I.C proceeds briskly through the controversy over the extent to which the Framers of the First Amendment intended the Establishment Clause explicitly to protect state religion policy. Part II confronts the constitutional developments, including the failed Blaine Amendment of the mid-1870s, that emerged from the Civil War and Reconstruction. It traces the Reconstruction story into the twentieth century, when the Supreme Court first applied the religion clauses to the states, and relates the issues of religion clause incorporation-in which the usually (and openly) antagonistic Hugo Black and Felix Frankfurter quietly joined forces-to the larger, mid-century battle over the relationship between the Bill of Rights and the states. Part III chronicles the rise of separationist interpretations of both religion clauses, pursuant to which religion is treated as constitutionally distinctive, and the incomplete recession to narrower, neutralist interpretations of the religion clauses that mark the past several decades.

Part IV represents our contextualized effort to add particular value to the conversation about federalism and faith. The open space within which states may have their own religion policy is a function of two considerations: the...