Author:Fallon, Richard H.

When compared with other constitutional doctrines, Establishment Clause doctrine is confused and anomalous, both substantively and with regard to standing. The Supreme Court ought to craft reforms in light of a wide-angle appraisal of pertinent comparisons, analogies, and interconnections. Substantively, the Justices should adopt the tiers-of-scrutiny approach that the Court employs under the Free Exercise, Free Speech, and Equal Protection Clauses. Within a tiered-scrutiny regime, the Court should strictly scrutinize any statute that classifies or requires classifications based on religion. It should prescribe intermediate scrutiny for statutes that expend tax revenues to provide material benefits to churches or religiously affiliated organizations on a nondiscriminatory, nonpreferential basis. And it should clarify its approach to determining which symbolic supports for religion rise to the level of Establishment Clause violations. Correspondingly, the Court should realign standing doctrine to equate the injuries needed for standing more closely with those against which the Establishment Clause furnishes substantive protection.

Introduction 60 I. An Overview of Modern Doctrine, Its Anomalies, and Its Confusions 71 A. Cases Involving Material or Financial Support for Religion 73 B. Accommodation Cases 77 C. Cases Involving Nonmaterial, Symbolic Support for Religion 78 D. Religion in the Public Schools 81 II. Elements of a Strategy for Reform 84 A. Embracing and Implementing a Regime of Sequenced, Tiered Judicial Scrutiny 85 1. In Defense of Tiers and a Weighing of Governmental Interests 85 2. Identifying Presumptively Protected Interests, Rights, and Values 89 B. Aligning Standing and Merits Doctrine 93 III. Applying a Tiered-Scrutiny Framework Across Diverse Categories of Cases 98 A. Cases Involving Financial Aid to Religion 99 B. Cases Involving Accommodation 105 C. Symbolic Support Cases 112 E. Concluding Methodological Note: The Establishment Clause in 117 Context 118 IV. Standing to Sue to Enforce the Establishment Clause 119 A. Financial and Material Burdens Adequate for Standing Outside the Establishment Clause 120 B. Taxpayer Standing 122 C. Injury Resulting from Symbolic Support 124 Conclusion 127 INTRODUCTION

Establishment Clause doctrine is notoriously confused and disarrayed--"a farrago of unstable rules, tests, standards, principles, and exceptions" that "leaves constitutional law scholars reminiscing wistfully about the elegance and simplicity of the Uniform Commercial Code or the Rule Against Perpetuities." (1) Establishment Clause doctrine is also anomalous as compared with the rule structure that prevails in analogous areas of constitutional law. In this Article, I argue that consideration of two central anomalies, and of some of the confusions that surround them, will illumine a path to attractive, rationalizing, clarifying reforms.

First, unlike many other doctrines that protect individual rights, the Supreme Court's Establishment Clause cases do not employ an analytically sequenced, tiered framework for judicial review of the kind that the Court uses to enforce the Free Speech, Free Exercise, Equal Protection, and Due Process Clauses, for example. (2) In tiered-scrutiny regimes, a court asks first whether a challenger has alleged a violation of a right or interest to which a particular constitutional provision plausibly extends protection. (3) If not, the court dismisses any constitutional challenges without further analysis. If a case plausibly comes within a provision's protective ambit, however, the court applies a more or less elevated level of scrutiny, depending on the violation alleged. (4) In cases involving direct infringements of fundamental rights or interests, either strict or intermediate scrutiny--as distinguished from rational basis review--normally applies. Admittedly, the Supreme Court has blurred the lines between its traditional tiers of review in some recent cases, especially involving gay rights. (5) Nevertheless, analytically sequenced, tiered review defines the norm in important swathes of constitutional law.

Establishment Clause cases disdain this approach. In the words of leading commentators, "long-standing Establishment Clause methodology" dictates that "[o]nce a practice... is judicially determined to be an establishment of religion... [c]ompeting government interests play no part." (6) Instead, the Supreme Court has often held that statutes that were adopted either exclusively or predominantly for the forbidden purpose of promoting religion, or that have the principal or primary effect of doing so, are per se invalid. (7) Yet the Court has not applied that test--which is often associated with Lemon v. Kurtzman (8)--consistently. Some leading cases have reached results that would be hard if not impossible to justify if the Court applied Lemon's stated prohibitions categorically. (9)

In cases involving the permissibility of statutes that lift burdens on religious institutions and religiously motivated individuals, the Court has said that no Establishment Clause violation occurs if the government responds to severe, governmentally imposed hardships and "take[s] adequate account of the burdens a requested accommodation may impose on nonbeneficiaries." (10) This formulation may hint that the government must closely tailor any religiously-based preferences to the promotion of governmental interests of some kind, but does not say so expressly. Moreover, tailoring analysis is wholly absent in most Establishment Clause cases, including both those that uphold and those that reject constitutional challenges. As if befuddled about how to rationalize the existing pattern of results, the Court has sometimes rejected Establishment Clause challenges without clear reliance on any doctrinal formula whatsoever. (11)

The introduction of a regime of analytically sequenced, tiered scrutiny would help impose both clarity and rational order on the currently chaotic Establishment Clause landscape. No linguistic or historical logic dictates that all constitutional doctrines should have the same structure. But the attractions of analytically sequenced, tiered scrutiny are familiar and intuitive. (12) Consider a hypothetical case in which a state legislature long ago adopted the state statute prohibiting murder for the sole purpose--in the psychological sense of that term--of enforcing one of God's commandments. To hold such a statute per se invalid because of the legislature's forbidden intent would seem draconian and untenable. Many of us would have a similar reaction if local authorities required the vaccination of school children solely for the forbidden purpose of discouraging Christian Scientists from moving into a community, but it later became apparent that requiring vaccinations served vital public health interests. For those who share these intuitions, a typical response, informed by other constitutional doctrines, would postulate that the hypothesized statutes should incur strict judicial scrutiny, but that they should survive if sufficiently narrowly tailored to compelling governmental interests. (13)

A real, topical example further illustrates the anomalous character of the Supreme Court's failure to apply analytically sequenced, tiered judicial scrutiny under the Establishment Clause. Statutes that exempt religious institutions or religiously motivated individuals from otherwise generally applicable laws require religiously-based classifications in order to sort those who qualify for exemptions from those who do not. If challenged under the Equal Protection Clause, classifications based on religion, the Court has sometimes asserted, would be assimilated to those based on race. (14) And race-based classifications trigger strict judicial scrutiny. (15) The Court has also prescribed strict scrutiny for religiously-based classifications under the Free Exercise Clause, at least when they are used to exclude some from benefits available to others based on their religious status. (16) If classifications based on religion are suspect under the Equal Protection and Free Exercise Clauses, why, one wonders, should they escape strict judicial scrutiny in Establishment Clause cases? (17) A possible response would be that the Court regards many statutory accommodations for religious practitioners as benign, even desirable, and believes that they should be upheld if they do not impose excessive burdens on third parties. But in cases involving other classifications drawn along "suspect" lines, including those involving race-based affirmative action in higher education, that conclusion would need to emerge from a strict scrutiny framework. (18) A disposition to favor otherwise suspect line-drawing in a particular context would not furnish a justification for forgoing searching analysis.

Adoption of an analytically sequenced, tiered-scrutiny approach would also invite a rationalizing reconceptualization of the relationship among some prominent subcategories within Establishment Clause doctrine that now appear more dissonant than harmonious. One important strain of decisions involves material support for religious institutions or activities. (19) In this branch of Establishment Clause doctrine, leading cases have demanded governmental neutrality, (20) both among religions and between religious and nonreligious beneficiaries. (21) Their categorical formulations suggest that any preferences for or among religious institutions or adherents of different faiths would violate the Establishment Clause.

In a second set of cases, however, demands for neutrality vanish, as the Supreme Court sometimes tolerates the singling out of religious institutions and religious believers for exemptions from otherwise applicable regulatory burdens, (22) including those of complying with antidiscrimination laws. (23)

More confusion enters the picture when one looks at cases involving symbolic support...

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