The Democratic Aspect of the Establishment Clause: a Refutation of the Argument That the Clause Serves to Protect Religious or Nonreligious Minorities - Patrick M. Garry

• Citation: Vol. 59 No. 2
• Publication year: 2008

The Democratic Aspect of the Establishment Clause: A Refutation of the Argument that the Clause Serves to Protect Religious or Nonreligious Minorities by Patrick M. Garry^*

A survey of Establishment Clause¹ doctrines and commentary reveals that the Clause is often interpreted as a minority rights provision, protecting religious and nonreligious minorities from being exposed in certain ways to society's dominant religions. This Article argues against such an interpretation. It portrays the Establishment Clause as a structural provision of the Constitution, concerned with democratic processes and limited government, much like the doctrines of federalism and separation of powers. This Article also asserts that democratic values and concern for majority rule constitute core values of the Establishment Clause. Whereas the Free Exercise Clause² protects minority rights, the Establishment Clause protects the democratic, majoritarian aspect of religion. The Establishment Clause guards the side of religious freedom involving the right to gather into groups that in turn interact with the public sector of society. Hence, the Establishment Clause should not be interpreted in a way that limits the right of religious groups to publicly assert their messages or that confines their social outreach activities to some private sphere within society.

Introduction

A strong body of commentary and caselaw suggests that the First Amendment Establishment Clause³ is a kind of anti-democratic provision, primarily concerned with protecting minority groups and secular society from the oppressive and destructive influences of the dominant religions.⁴ Under this view, the Establishment Clause provides a check on the public role and influence of religion.⁵ Indeed, too much of a public presence of religion is seen as threatening the stability and functioning of civil society.⁶ Consequently, the Establishment Clause is interpreted as reflecting the Framers' desire to avoid the type of social divisiveness and majoritarian oppression that only religion can produce.⁷ This interpretation then leads to the "wall of separation" doctrine, which has long characterized the Court's Establishment Clause jurisprudence.⁸ But such a doctrine carries immensely anti-democratic overtones. Even though religion and religious associations have historically played a prominent role in democratic society, even though individual members of society freely choose their involvement in those religions and religious associations, and even though religious associations are the type of nongovernmental social associations that are free to exert whatever influence their members choose, the separationist interpretation of the Establishment Clause is used to exert a paternalistic veto, essentially holding that the religious choices of individuals have to be checked by judges, who apparently know more about the health of democracy than the citizens who support and conduct that democracy.

Part I of this Article sets forth the argument that the Establishment Clause is a structural provision of the Constitution. As such, it is not akin to an individual rights provision geared to the protection of minority interests from majoritarian infringement. Instead, it is more concerned with social structures. Similar to constitutional doctrines, such as federalism and separation of powers, the Establishment Clause is focused on the structural or institutional make-up of democratic society. Like the limited government provisions of federalism and separation of powers, the Establishment Clause focuses not on increasing the power of the central government, insofar as that government is able to dictate a uniform set of religious boundaries throughout all the diverse communities in the nation, but on restricting the power of government to interfere with or repress the religious impulses of a democratic society, as those impulses are reflected through the functioning of religious organizations.

Part II of this Article outlines the contrary view ofthe Establishment Clause, which reads the clause as a substantive protection of religious or nonreligious minorities from certain kinds of exposure to or interaction with the more dominant religions in society. This view has been instrumental in one of the predominant tests now used to measure Establishment Clause violations—the endorsement test.

In Part III, this Article discusses how the notion of the Establishment Clause as a minority protection provision has expanded into an application of the Clause as a guardian against the unique kinds of political divisiveness that religion can cause. This application envisions the Establishment Clause as protecting a secular society from the destabilizing influences of religion.

In Part IV of this Article, a different view of the Establishment Clause is offered. This view sees the Establishment Clause as compatible with both democracy and the religious choices of individuals. Unlike the Free Exercise Clause,⁹ the Establishment Clause is seen as more concerned with preserving the majoritarian impulses of society than with protecting certain minority rights.¹⁰ In this view, the Establishment Clause is compatible with other structural provisions of the Constitution, insofar as those provisions are intended to support the functioning of a democratic government of checks and balances.¹¹

I. The Establishment Clause as a Structural Provision

A view persuasively articulated by Professor Steven Smith is that the Establishment Clause¹² is structural.¹³ In this respect, the Establish- ment Clause has been interpreted as having a federalism component, insofar as it provides a "constitutional promise to the states that the federal government would not interfere with certain forms of state religion policy."¹⁴ This is the view Justice Thomas has adopted, leading him to argue that the Establishment Clause never should have been applied to the states by way of incorporation through the Fourteenth Amendment.¹⁵ As he explained in his concurring opinion in Elk River School District v. Newdow,¹⁶ "the Establishment Clause is a federalism provision, which . . . resists incorporation."¹⁷ Justice Thomas further observed that "[t]he text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with [the] state[s]."¹⁸ In this same vein, Justice Stewart had earlier recognized that "the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments."¹⁹

Given that the Establishment Clause was meant to prevent the federal government from establishing a national state religion, such as what existed in England, it essentially serves as yet another constitutional mandate for limited government.²⁰ The Establishment Clause was meant to keep the federal government out of the area of religion and to restrain the federal government from imposing a single, uniform religious code on a religiously diverse nation.²¹ Thus, similar to the reasons underlying the limited government provisions of federalism and separation of powers, the Establishment Clause served to keep the federal government from stunting democratic freedoms by extending the government's centralized, uniform mandates across the whole nation.²² Freedom and democracy, to the Framers, required a national government of limited powers, particularly in the areas of religion and religious institutions.²³

According to Professor Daniel Conkle, the Establishment Clause was intended by the Framers to effect "a policy of federalism on questions of church and state."²⁴ As originally conceived, the Establishment Clause would prohibit the federal government from interfering with the states' freedom to legislate on matters of religion.²⁵ The issue of federalism was central to the debate surrounding the drafting of the First Amendment.²⁶ Professor Gerard Bradley has called the Establishment Clause a device to "preserve existing state constitutional regimes from intermeddling federal legislation."²⁷ According to Steven Smith, the "religion clauses were understood as a federalist measure, not as the enactment of any substantive principle of religious freedom."²⁸ Akhil Amar describes the Establishment Clause as being "utterly agnostic on the substantive issue of establishment; it simply mandated that the issue be decided state by state and that Congress keep its hands off."²⁹ Not only did the drafters not intend to apply the Establishment Clause to states and localities, but the historical "evidence strongly suggests that the fourteenth amendment, as originally understood, did not incorporate the establishment clause for application to state government action."³⁰ Indeed, such a result would obviously impart a much more democratic nature to the Establishment Clause because states and localities would have more freedom to acknowledge or interact with religion than they currently have.

As a structural provision, the Establishment Clause should not be applied to block the freedom of religious majorities because such an application would inhibit both democracy and limited government. Private social associations, particularly religious associations, have always provided a check on an abusive or oppressive government. Indeed, the American Revolution was inspired by the notion of natural rights bestowed by the Creator.³¹ Thus, to interpret the Establishment Clause as restraining the democratic freedom of religion and religious associations is to interpret the Establishment Clause contrary to its nature as a structural provision within the constitutional scheme of limited government.

II. The View of the Establishment Clause as a Minority-Protecting Provision

The United States Supreme Court has used the Establishment Clause³² to strike down many local accommodations of religious exercise...