A political history of the Establishment Clause.

Author:Jeffries, John C., Jr.
Position:US Supreme Court since 1947

Now pending before the Supreme Court is the most important church-state issue of our time: whether publicly funded vouchers may be used at private, religious schools without violating the Establishment Clause. (1) The last time the Court considered school aid, it overruled precedent and upheld a government program providing computers and other instructional materials to parochial schools. (2) In a plurality opinion defending that result, Justice Thomas dismissed as irrelevant the fact that some aid recipients were "pervasively sectarian." (3) That label, said Thomas, had a "shameful pedigree." (4) He traced it to the Blaine Amendment, proposed in 1875, which would have altered the Constitution to ban aid to sectarian institutions. At the time, "it was an open secret that `sectarian' was code for `Catholic.'" (5) Of course, said Thomas, the word could describe schools of other religions, but the Court "eliminated this possibility of confusion" by coining the phrase "pervasively sectarian" -- a term applicable almost exclusively to Catholic parochial schools. (6) The exclusion of "pervasively sectarian" schools from otherwise permissible aid to education was, Thomas concluded, not a neutral interpretation of constitutional command but a doctrine "born of bigotry." (7)

Justice Thomas did not attack the ban against aid to "pervasively sectarian" schools merely as a misunderstanding of text or original intent. He charged, rather, that the hostility to "pervasively sectarian" institutions reflected political conflict and popular prejudice. This is not the usual stuff of Supreme Court debate. Perhaps for that reason, Justice Souter's dissent did not so much answer the accusation as make fun of it, noting only that some "pervasively sectarian" schools are not Catholic and that some Catholics oppose school aid. (8) Nevertheless, Thomas's account is at least partly true. The constitutional disfavor of "pervasively sectarian" institutions is indeed a doctrine born, if not of bigotry, at least of a highly partisan understanding of laws "respecting an establishment of religion." (9) The first and narrowest ambition of this Article is to document that assertion.

More broadly and more importantly, we contend that the entire body of Establishment Clause jurisprudence can profitably be viewed from a political perspective. The title of the Article signals the intent. We analyze Establishment Clause decisions as if they were political. More fully, we analyze Establishment Clause decisions as if they were products of political contests among various interest groups, both religious and secular, with competing positions on the proper relation of church and state. The "as if they were" qualification is important, as we do not claim that the justices thought of themselves as political actors, still less as representatives of religious interests, or that they consciously desired to conscript the Constitution to such ends. On the contrary, we believe that many justices would be shocked by this description of their work and would protest, in all sincerity, that they tried to elucidate, without favoritism or prejudice, the principles that they understood to be enshrined in the First Amendment. We accept that representation completely. But it requires no flight of imagination to believe that the justices' views of what the Constitution should mean powerfully inform their views of what it does mean, and that normative beliefs often reflect prevailing attitudes. In this Article, we assume that mechanisms exist by which political ideology and dominant attitudes find their way (after the generational delay occasioned by age and longevity of the justices) to the Supreme Court. We make no effort to probe the subjective motivations of individual justices. Instead, we aim to reveal the correspondences between constitutional doctrine and popular sentiment in the area of church-state relations. Put crudely, this is an exercise in post hoc, ergo propter hoc, which is famous as a fallacy only because it is so often true.

Looking at the Establishment Clause in this way yields a more complete and coherent account of modern constitutional doctrine than can be derived from the conventional sources of text, history, and structure. Indeed, one good reason to analyze the Establishment Clause in this way is the lack of plausible alternatives. Whatever the modern decisions may be thought to represent, whether for good or ill, they cannot persuasively be attributed to original understanding, except perhaps at a level of generality largely devoid of meaning. They do not derive from the "intent of the Framers" or from any "constitutional moment," (10) such as the Civil War, that might be thought to have replaced the original understanding. In terms of the conventional sources of "legitimacy" in constitutional interpretation, the Supreme Court's Establishment Clause decisions are at least very venturesome, if not completely rootless. It makes sense, therefore, to look at establishment cases as the products of a subconstitutional -- which is to say, political -- contest among religious and secular interests with (often self-serving) ideological commitments on separation of church and state.

To preview the argument briefly, the modern Establishment Clause dates not from the founding but from the mid-twentieth century. At that time, the Supreme Court adopted a rhetoric of radical separation of church and state. That rhetoric had as its defining application and chief consequence a constitutional ban against aid to religious schools. Later, the Court also moved to purge religious observances from public education. These two propositions -- that public aid should not go to religious schools and that public schools should not be religious -- make up the separationist position of the modern Establishment Clause.

We begin with the ban against aid to religious schools. The modern no-aid position drew support from a broad coalition of separationist opinion. Most visible was the pervasive secularism that came to dominate American public life, especially among educated elites, a secularism that does not so much deny religious belief as seek to confine it to a private sphere. This public secularism appears on the face of Supreme Court opinions and is deeply embedded in Establishment Clause doctrine. Additionally, the ban against aid to religious schools was supported by the great bulk of the Protestant faithful. With few exceptions, Protestant denominations, churches, and believers vigorously opposed aid to religious schools. For many Protestant denominations, this position followed naturally from the circumstances of their founding. It was strongly reinforced, however, by hostility to Roman Catholics and the challenge they posed to the Protestant hegemony, which prevailed throughout the nineteenth and early twentieth centuries. In its political origins and constituencies, the ban against aid to religious schools aimed not only to prevent an establishment of religion but also to maintain one.

Today, much has changed. Anti-Catholic animosity has faded, and the crucial alliance between public secularists and Protestant believers has collapsed. Public secularists, whose devotion to public schools has declined in recent decades, now divide over the question of funding religious alternatives. More importantly, so do the Protestant faithful. While mainline Protestant denominations continue to demand strict separation of church and state, fundamentalist and evangelical opinion has largely deserted that position. (11) Today, fundamentalists and evangelicals have moved from the most uncompromising opponents of aid to parochial schools to its unlikely allies.

In origin, this about-face had less to do with theology than with politics and self-interest. The defection of fundamentalist and evangelical opinion from the separationist coalition flowed initially from their embrace of the private schools that sprang up throughout the South (and elsewhere) in the wake of court-ordered desegregation. Originally, these schools were secular. They were created purely and simply to escape integration. Most of them, however, were soon transformed into, or succeeded by, Christian academies specializing in faith-based education. Today, virtually all of these schools say that they practice nondiscrimination, and many -- perhaps most -- enroll African-American students. Nonetheless, private academies remain havens for whites seeking to avoid minority status in public school systems dominated by persons of color.

Additionally, Christian academies are energized by antipathy to the triumphant secularism of public education and by the desire to maintain or recreate in the private sphere the unselfconscious Protestant establishment that once dominated public life. Allegiance to these schools and sympathy for the financial burden that they place on devout parents have moved many fundamentalist and evangelical Christians to rethink their traditional opposition to aid to religious schools. As a consequence, strict separationism is opposed today by true believers of many faiths, not just Roman Catholics (and a few other sects with a history of religious schools), but also by the nation's largest Protestant denomination (Southern Baptists) and by the great weight of opinion among the variety of churches called fundamentalist or evangelical.

Against this new coalition, we predict, the constitutional barrier against financial support of religious schools will not long stand. We see the current judicial uncertainty on this subject not merely as a continuation of the blurred and shifting margins that have plagued the field for years, but as a crack that goes to the core. We see the Court and the nation in the midst of a sea-change that ultimately will contradict past practice as clearly and fully as Brown rejected Plessy. This prediction does not depend (except in timing) on a guess about future...

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