No Need to Stand on Ceremony: the Corruptive Influence of Ceremonial Deism and the Need for a Separationist Reconfiguration of the Supreme Court's Establishment Clause Jurisprudence - Charles Gregory Warren

• Publication year: 2003

Comment

No Need to Stand on Ceremony: The Corruptive Influence of Ceremonial Deism and the Need for a Separationist Reconfiguration of the Supreme Court's Establishment Clause Jurisprudence^*

I. Introduction

Adherence to the imperatives of the Establishment Clause¹ contributes significantly to the First Amendment's quintessential purpose of promoting the democratic ideal of a vigorous public discourse on all issues ofpublic concern in the beliefthat in this way a cohesive political community can be forged from a culture of dissidence. Governmental abstention from endorsement of religion is essential to ensure that no one is ostracized from this political community by virtue ofhis religious belief (or lack thereof), or more pointedly, that no one is forced to choose between inclusion in the polity and adherence to conscience.

The Establishment Clause is emblematic of this harmonizing endeavor as it seeks to ensure both the autonomy of religion from governmental interference² and that a person's religious beliefs (or lack thereof) will in no way affect his full inclusion within the political community.³ In pursuing these dual ideals, the Establishment Clause (in conjunction with the Free Exercise Clause⁴ ) strives to reconcile the individual's desire for moral autonomy with the collective's desire for socio-political cohesiveness. Perceived in this light, the Establishment Clause possesses the potential to safeguard our pluralistic society by enshrining both freedom of conscience in religious matters as an inviolable constitutional right and religious tolerance as an indispensable constitutional imperative. Therefore, courts applying the Establishment Clause should endeavor to promote both religious tolerance and freedom of conscience by forbidding the government from endorsing any one religion or religion generally versus nonreligion.⁵

Currently, the Supreme Court's Establishment Clause jurisprudence is in a state of flux. To date, the Court has articulated no fewer than three separate and distinct tests⁶ for use in Establishment Clause challenges to governmental actions that allegedly "[bring] government and religion into that proximity which the Establishment Clause forbids."⁷ This Comment argues that the flux in the Court's Establishment Clause jurisprudence can be attributed to the Court's subtle departure from the "separationist" model⁸ in favor ofthe "accomodation- ist" model.⁹ In the Author's view, a reconfiguration of the Supreme Court's Establishment Clause jurisprudence into one unified, comprehensive, and consistent approach is highly desirable. A reconfiguration of the Court's analytical framework in the mold of the separationist model is essential to bolster our pluralistic society by effectuating the dual imperatives of individual autonomy and social cohesion manifested in the Establishment Clause.

Part II discusses the historical evolution of the Supreme Court's Establishment Clause jurisprudence, including the corruption of the Court's "Lemon test" by the Court's "secularization"¹⁰ analysis, the conceptual infirmity of the "endorsement test" in light of the Court's willingness to carve out an exception for "ceremonial deism,"¹¹ and the constitutional redundancy of the "coercion test" as essentially repetitive of a Free Exercise Clause inquiry. Part III critiques the Court's resort to secularization and ceremonial deism in fashioning its Establishment Clause jurisprudence with an emphasis on the detrimental effects of the Court's flawed conceptual model on the individual, society, and religion. Part IV suggests and illustrates an alternative approach to the Court's Establishment Clause jurisprudence—a return to the separationist model, employing a forthright application of the endorsement test unblemished by any association with ceremonial deism, as illustrated by the Ninth Circuit's recent decision in Newdow v. U.S. Congress.¹²

II. Historical Evolution of the Supreme Court's

ESTABLISHMENT CLAUSE JURISPRUDENCE

Initially, the Supreme Court's Establishment Clause jurisprudence reflected its keen sensitivity to the philosophical imperatives of the Establishment Clause by adopting a separationist model of analysis when evaluating Establishment Clause challenges to governmental actions. Generally, the Court's decisions between Everson v. Board of Education,¹³ the first modern Establishment Clause case,¹⁴ and Lemon v. Kurtzman¹⁵ reflected an attempt to keep the respective realms of "church" and "state" separate in the belief that such an arrangement was beneficial to society because church and state were thought to be mutually corruptive of each other.¹⁶ However, while the Court's pre-Lemon caselaw and articulation of the Lemon test¹⁷ focused upon the maintenance of a clear delineation of and neutral relationship between religion and the state, the Court's focus shifted in the wake of its decisions in Marsh v. Chambers¹⁸ and Lynch v. Donnelly.¹⁹ Marsh and Lynch depict a Court forsaking its traditional role as arbiter of constitutional law in exchange for a role as arbiter of cultural semiotics. This shift in the Court's analytical perspective demonstrates a corresponding discernable shift from the separationist to the accomodationist model of decisionmaking by a Court eager to prevent a potential erosion of cultural identity appertaining to a constitutional invalidation of now secularized rituals with sacral antecedents.

A. The Lemon Test

1. The Rise of the Separationist Model: Establishment Clause Jurisprudence from Everson to Lemon. In Everson, the Supreme Court, in formally incorporating the protections of the Establishment Clause against the states via the Fourteenth Amendment, articulated a strong endorsement of the separationist model in adjudicating Establishment Clause cases, declaring:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can . . . force him to profess a belief or disbelief in any religion . . . . In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between [c]hurch and [s]tate."²⁰

Curiously, after invoking President Jefferson's stirring metaphor as a justification for deducing a constitutional principle of neutrality toward religion, the Court peered over the wall and upheld the constitutionality of a New Jersey statute that provided reimbursement funds to parents for transportation costs incurred in bussing their children to public or parochial schools.²¹ The Court attempted to reconcile its specific holding with its commitment to the "wall of separation" principle, reasoning that the statute's "neutrality" in the disbursement of reimbursement funds to parents comported with the dictates of the Establishment Clause.²² Notwithstanding its specific holding, the Court's endorsement of the separationist principle was emphatic and resolute, asserting that "[t]he First Amendment has erected a wall between church and state. That wall must be kept high and impregnable."²³

In the decades that followed, the Court was routinely confronted with Establishment Clause challenges in the public education context.²⁴ The Court's school prayer decisions in Engel v. Vitale²⁵ and School District of Abington v. Schempp²⁶ are especially useful in bringing the Court's espousal of the separationist model into sharp relief. In Engel the Court confronted and invalidated a New York state statute recommending the daily recitation of a twenty-two word nondenominational prayer²⁷ as violative of the Establishment Clause.²⁸ The Court rejected the State's contention that the prayer, although religious, was still permissible because it served the educational purpose of "[m]oral and [s]piritual [t]raining" and that the prayer itself was nonsectarian and its recital voluntary.²⁹ Responding to the State's argument with separationist-type rhetoric, the Court asserted that the Establishment Clause must "at least mean that in this country it is no part of the business of the government to compose official prayers for any group ofAmerican people to recite as a part of a religious program carried on by government."³⁰ Additionally, the Court emphasized its concern with the "subtle coercion" imposed upon a captive audience of impressionable students witnessing such an explicit governmental endorsement of religion: "When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain."³¹

Building upon this rationale, the Court in Schempp struck down a Pennsylvania statute requiring that every teacher read, without comment, at least ten Bible verses, followed by a recitation of the Lord's prayer, at the opening of every school day.³² Interestingly, Justice Clark, writing for the majority, foreshadowed the Court's later adoption of the three-prong Lemon test in his incorporation of a two-part test into the Court's Establishment Clause analysis: (1) whether a secular legislative purpose exists for a challenged practice; and (2) whether the "primary effect" of the practice neither advances nor inhibits religion.³³ The Court declared that the practice at issue violated the Establishment Clause's demand for governmental neutrality towards religion because the State's incorporation of these religious practices into its curricular activities had the primary effect of advancing religion.³⁴

The developing logic in this line of school prayer cases was that the Establishment Clause forbade governmental endorsements ofreligion in curricular activities on public school grounds, whether sectarian or nonsectarian, voluntary or involuntary.³⁵ Read together, these cases demonstrate the Court's...