Secular idolatry and sacred traditions: a critique of the Supreme Court's secularization analysis.

• Author: Furth, Alexandra D.
• Position: U.S. Supreme Court

INTRODUCTION

The Supreme Court's Establishment Clause jurisprudence has generated great controversy and received virulent criticism from people on both sides of the constitutional debate. The Court's analysis attempts to delineate the boundaries between religion and secular society, raising fundamental questions about the role of religion in the lives of individuals and in the public sphere. Such constitutional determinations strike at the very core of the American identity, potentially jeopardizing long-held traditions. Furthermore, these issues beg metaphysical questions about the definition of "religion" and the role of both religion and history in the evaluation of potentially unconstitutional practices. As part of this legal challenge, the Supreme Court has engaged in the controversial task of ascertaining whether seemingly religious practices and symbols are in fact religious, or whether history and collective experience have purged them of their religious significance.

By distinguishing practices that are religious from those that "have lost any true religious significance,"(1) the Court has engaged in a "secularization" of religious practices and symbols. Examples include state-sponsored religious displays(2) and invocations of God in the Pledge of Allegiance and other national mottoes.(3) Although secularizing religious practices conveniently preserves the inclusion of symbols and practices that many Americans understand as fundamental to American identity, it also threatens the purity and integrity of both government and religion. In addition, such strained legal justification jeopardizes the historically neutral relationship between religion and the state.

The Court's adoption of this type of fact-specific inquiry also presents a larger and more daunting question: What is at stake in defining a given practice as either truly religious or secularized by time and tradition? This Comment explores the motivations behind the secularizing of religious symbols and practices, as well as the implications of sanctioning those symbols and practices with legal authority, and argues for an alternative analysis.

Part I of this Comment provides a background of traditional Supreme Court Establishment Clause analysis. Part II describes recent changes in Establishment Clause analysis, particularly the secularization of religious practices. It discusses the foundations of this trend and analyzes several examples, including the secularization of religious practices and symbols in two contexts: public displays and national invocations of religion. In addition, Part II critiques the logic of the Court's secularization analysis, arguing that the Court's rationalization is both inadequate and spurious. Part III examines the academic notion of "civil religion," a concept that has been embraced by the Supreme Court in its efforts to justify secularization of religion. Part IV discusses the detrimental effects of the Court's secularization of religious practices and symbols, and considers the ways in which secularization injures religion, society, and the individual. Part V suggests a theory for why the Court continues to embark on its mission--in spite of the conspicuous perils that accompany secularization--and how the damage can be minimized. In particular, this Part argues that the persistent compulsion to retain religious practices and symbols in public life is due, in part, to a collective crisis of American identity and attendant fears of an evolving identity that excludes religion. Finally, this Comment argues for a repudiation of the Supreme Court's secularization analysis and a return to a faithful Establishment Clause jurisprudence.

1. TRADITIONAL ESTABLISHMENT CLAUSE ANALYSIS

   The Supreme Court's Establishment Clause(4) analysis has been attacked by commentators from all sides of the constitutional and religious debate since the Supreme Court embarked on its first attempts to articulate a coherent doctrine.(5) Criticism of the Court's analysis has focused on recent decisions that specifically delineate which practices are truly religious and therefore violate the Constitution.(6) However, the Court's ambivalence about the appropriate role of religion in public life, as well as the proper means for analyzing such issues, has been apparent since its earliest decisions.

   In its original incarnation, the Supreme Court's church and state doctrine appeared to be certain and resolute. In Everson v. Board of Education, the Court upheld a New Jersey statute that provided for reimbursement to parents for costs of transporting children to public or parochial schools.(7) The Court reasoned that, although parents of students attending parochial school were eligible for assistance, the program did not aid religion.(8) In spite of the specific holding, the Court stated a firm and unambiguous prohibition of church and state integration:

   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 nor influence a person to go to

   or to remain away from church against his will or force him to profess a

   belief or disbelief in any religion. No person can be punished for

   entertaining or professing religious beliefs or disbeliefs, for church

   attendance or non-attendance. No tax in any amount ... can be levied to

   support any religious activities or institutions, whatever they may be

   called, or whatever form they may adopt to teach or practice religion.

   Neither a state nor the Federal Government can, openly or secretly,

   participate in the affairs of any religious organizations or groups and

   vice versa.(9)

   In addition to articulating an emphatically separationist policy, the Court specifically stated that the First Amendment (and therefore the Establishment Clause) applied to both the federal government and the states.(10) Invoking Thomas Jefferson's concept of a "wall of separation between church and state,"(11) the Court maintained that the "wall must be kept high and impregnable,"(12) apparently leaving little room for future debate.

   In spite of its auspicious beginning, the Supreme Court's church and state doctrine later became equivocal, uncertain, and fiercely contested. Although the principle of neutrality developed in Everson prevailed in the decades following the decision, the concept was constantly reinterpreted and manipulated.(13) Over time, the Court's opinions adopted various analyses yielding unpredictable results,(14) and its consensus on mandatory and absolute separation of church and state as expressed in Everson dissolved.(15) Until 1971, when the Supreme Court decided Lemon v. Kurtzman and announced a formal test for practices and laws challenged under the Establishment Clause,(16) the Court's decisions relied on a somewhat ad hoc methodology.

   According to the Lemon test, a practice or law does not violate the Establishment Clause if it has a valid secular purpose, does not have a primary effect that either advances or inhibits religion, and does not create excessive entanglement of government and religion.(17) Although the Lemon test seems to provide sufficient guidance, it has failed in two important respects. First, the rule has not garnered the necessary support from the Court.(18) Second, it provides no guidance for determining when a challenged practice or symbol is sufficiently "religious" to trigger rigorous Establishment Clause analysis. Although the formal rule articulated in Lemon has survived, the rule is of limited value, as it does not provide a vehicle for assessing religiousness and is not uniformly applied.(19) Thus, the determination of how and when practices violate the Constitution has evolved as a nebulous and highly subjective process.

2. THE SECULARIZATION OF RELIGION

   In the absence of a systematic means for ascertaining when a challenged practice is sufficiently nonreligious to survive Establishment Clause analysis, the Supreme Court has determined religiousness on a case-by-case basis. This Part of the Comment demonstrates how the Court has secularized religious practices by discussing several examples. In addition, this Part critiques the logic of Supreme Court secularization.

   "Secularization," as it is used in this Comment, refers to the Supreme Court's determination that practices and symbols which were once religious have lost their religious significance, through either temporal or contextual erosion. A determination of the true religiousness of contested practices and symbols has not been consistently subjected to Establishment Clause analysis. Rather, the analysis has been selectively employed in an attempt to reconcile religion with tradition.(20) The standard may be whether a symbol or practice has achieved a threshold level of status in American history and tradition. One commentator speculated that "[t]he comfort of familiarity and the desire for continuity with the past explain continued use of the symbol better than devotion to the content of its meaning."(21) The explanation that such practices and invocations are of a national rather than religious significance(22) reveals a fundAmental and deep-seeded attachment: To outlaw such practices would be somehow "un-American."

   1. Secularization in Practice

      Either by design or as a byproduct of constitutional reasoning, secularization has preserved traditional practices in several different contexts, including public displays and national invocations.(23) However, even prior to invoking secularization as a justification for preserving religious practices and symbols, the Court expressed its predisposition to sanction some religious practices. These early cases revealed a commitment to historical tradition and a willingness to creatively preserve religious practices in spite of obvious conflicts with the Establishment Clause...