Religion and Local Power

• Publication year: 2021

Religion and Local Power

Brian M. Miller

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Religion and Local Power

by Brian M. Miller^*

I. Introduction

In December of 2017, hundreds of protestors descended on Washington, D.C., from all over the United States. The crowds converged on the blocks surrounding the Supreme Court of the United States, where onlookers might have spotted signs reading "It's Not About the Cake," and "Open to All," rising from one side of the crowd, and signs reading "Serves All People, But Can't Create All Art," and "Justice for Jack" rising from the other side.¹ That morning the Supreme Court heard a case about a Colorado cake shop owner who, because of his religious convictions, refused to create a cake that was to be used at a wedding of two men.² One small-scale business transaction (or lack thereof) sparked protests and heated debate across the entire country. Why?

The reasons are obvious to anyone familiar with United States religious freedom jurisprudence. The Supreme Court was asked to decide whether the United States Constitution gave Jack Phillips the right to be exempt from a Colorado law that mandated he serve the wedding cake to the gay couple.³ The Court's answer to that question not only would decide a dispute between one businessperson and one couple, but also would set the tone for all future claims for religious exemptions nationwide.

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Although the Supreme Court eventually decided the case on narrower grounds than some commentators preferred,⁴ the Court has historically ushered religious freedom issues from distinctly local disputes to enshrinement in national law. In Trinity Lutheran Church of Columbia v. Comer,⁵ one Christian school was not reimbursed by the State of Missouri for resurfacing its playground, and after the Supreme Court decision, all state or local entities potentially must fund religious entities in the same way they fund nonreligious entities.⁶ In Everson v. Bd. of Educ. of Ewing Tp.,⁷ one local school board was reimbursed for the costs of bussing students to Catholic schools,⁸ and, after the Supreme Court decided the case, the federal Establishment Clause applied to every state and local government in the country.⁹

As anyone trying to trace a unifying thread through First Amendment cases will understand, the Supreme Court's religion jurisprudence has historically been inconsistent and often unclear. At least one thing is clear: for most of the major Supreme Court decisions over recent decades implicating the First Amendment's religion clauses, likely a million or more people were encouraged and a million or more were disheartened. That's because whatever the decision, the newly articulated legal principle controls every government within United States borders.

Because of the far-reaching impact of such decisions, in the past few decades seemingly no stone has remained unturned in the doctrine of religious liberty. When is a person, or a corporation, entitled to an exemption from a general law it claims burdens its religious exercise?¹⁰ When may government provide funding to a religious institution?¹¹ When must it?¹² May a town display a nativity scene in a public park at

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Christmas time?¹³ The list goes on, and the scholarship attempting to answer such difficult questions is extensive and superb.¹⁴

Because of the distinctly national scale—thanks to the Supreme Court's approach—of these disputes, some commentators have sought for an acceptable "compromise"; a rule or state of affairs that perhaps does not give an outright win to any side but ultimately arrives at a deal that a majority of people do not hate. For example, Andrew Koppelman, in his recent book Gay Rights vs. Religious Liberty?, argues for a national legislative compromise—one that contemplates strong and broadly applicable nondiscrimination laws, but affords narrow exemptions to entities that are open about their religious beliefs that may require them to behave contrary to the general law.¹⁵

But perhaps the best compromise will not be found on the national scale at all. What if there was a different type of "compromise" that satisfied more people—one that gave a positively desirable result to a large majority of citizens, not just as to the issue of religious exemptions, but as to all issues implicating relations between religion and government? Allowing local governments greater power and freedom to chart their own course on matters of religion is, in my view, that compromise. Yet, relatively little scholarly work has been done to address whether government actions implicating the religion clauses should be handled differently based on which government is involved. Should a mayor's Thanksgiving proclamation that gives thanks to Jesus be treated by courts identically to the President's Thanksgiving proclamation which does the same? Should a federal law prohibiting any federal funds from being distributed directly to religious entities be treated the same as a local ordinance that prohibits such funding? In a way, it is only natural that little attention has been given to such questions of local power and diversity in the substantive area of

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religion. After all, both the Establishment Clause and the Free Exercise Clause have applied to state and local governments for over seventy years.¹⁶ Yet, granting the fact of incorporation, the Constitution does not necessarily require that the religion clauses apply against local governments in exactly the same way as they do against the federal government and states.¹⁷

A couple scholars have begun to unpack this issue. In 2004, Richard Schragger examined the nature of centralized versus dispersed political power and their likely effects on individual liberty and concluded that courts should give greater respect to local government actions affecting religion, but direct greater suspicion toward federal government actions that do so.¹⁸ More recently, Roderick Hills argued that because of the breadth and intensity of disagreement on issues of religious freedom in a nation as large and diverse as the United States, courts should defer to states' and localities' stances on "reasonable and deep disagreements"¹⁹ —issues for which parties on both sides claim a fundamental right to governmental support or accommodation.²⁰ Under both theories, local governments (and state governments, in Professor Hills's view) should have more leeway than the federal government to either support or inhibit religion in the pursuit of the public good as conceived by the majority of the jurisdiction's citizens.

In recent years, unfortunately, the Supreme Court has not followed a path like the one Professors Schragger and Hills have encouraged.²¹

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Particularly for free-exercise claims, it has likely, if anything, reduced governmental discretion in general, including for local governments.²²

This Article not only builds on Schragger's and Hills's theories, but also (1) offers independent historical and theoretical justifications for local power over church-state matters, and (2) closely inspects existing church-state doctrine for bases from which to allow greater local discretion. Specifically, it argues that local governments have historically served as the best homes for democratic and associational expression, and that this historical reality indeed reflects the values of democratic theory more generally. It then explains why local governments are especially effective at securing such values in the context of religion. Within that framework, this Article moves to critique modern Supreme Court doctrine as falling short of securing attainable democratic ideals in the context of church-state disputes. From there, this Article identifies a couple footholds in modern jurisprudence from which lower courts, notwithstanding recent Supreme Court decisions, could and should offer more leeway to local governments on issues implicating religion.

This Article proceeds in three parts. Part I provides a brief history of local governments, starting in pre-Revolution England and the colonies, and describes how local entities often preexisted the central government as the primary means of self-government, including on matters dealing with religious practice. The history reveals that, contrary to modern assumptions, local governments were not always seen as subunits of states, but instead, were often treated as voluntary quasi-private associations that possessed considerable power as a matter of custom. Part I continues by demonstrating why that historical honor is well-deserved—that local governments do an especially good job at dealing with matters affecting religion from a democratic and utilitarian perspective. Part II applies that historical-theoretical perspective to recent Supreme Court cases. It concludes that the Supreme Court has wrongly failed to identify the "level" of government as centrally important in religion cases. It critiques recent cases that limit government discretion under the banner of religious free-exercise, and cases that appear to give substantial power to the states and the federal government on the Establishment Clause side. Part III provides a smaller-scale, short-term solution. It first concludes that, despite the

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Court's overall ignoring of the value of local autonomy, the variety of balancing tests the Court has employed to address these disputes give lower courts some limited room to consider the nature of the government entity when considering whether a government action runs afoul of the First Amendment's religion clauses. Next, Part III recounts the difference between facial and as-applied challenges and argues that the preference for as-applied challenges articulated by the Supreme Court should be especially strong when a local government action is challenged. Relatedly, it then considers the principles undergirding the law of remedies and contends that courts considering local government actions that affect religious interests...