Strategy trumps precedent: separationist litigants on the losing side of legal change.

Author:Millar, Ronald B.

Previous research determined that interest groups appearing before the Supreme Court did not modify their legal arguments when these groups found themselves on the losing side of legal change This article is based on research conducted to test this finding by examining the legal arguments used by separationist litigants in government funding of religious elementary and secondary schools from Lemon to Zelman. Countering the prior finding this research determined that separationist interest groups revisited and modified their legal arguments throughout the life cycle of a legal precedent. These litigants searched for and put forward the arguments the felt offered the most effective legal reasoning to establish their legal victories, expand on their victories, and lastly, to defend their victories following changes in the legal policy environment.


How do interest groups, whose legal arguments were once used as the legal standards For Supreme Court decisions, respond when a majority of the Supreme Court no longer accepts their legal arguments? Lee Epstein and Joseph F. Kobylka, in their 1992 book, The Supreme Court & Legal Change: Abortion and the Death Penalty found that interest groups on the losing side of legal change did not modify their legal arguments in reaction to changes made by the Court. Epstein and Kobylka reported,

In both cases (capital punishment and abortion), initial "liberal" victories were forged and then lost, in significant part, because their defenders doggedly clung to their understanding of the Court's logic. This fatally constrained their ability to shift argumentational grounds when those victories came under threat. This we have called the "tyranny of absolutes," the notion that legal arguments, once seemingly won, are absolute and defensible only on those grounds. Without the argumentational flexibility to adapt to new conditions, the tyranny of absolutes led abolitionists and pro-choice advocates to dig their own doctrinal graves by ignoring alternative arguments that might have saved the underlying goals their initial victories were intended to achieve and protect. (1)

The implication that interest groups pursuing their policy objectives were unable, or unwilling, to modify their arguments "to adapt-to new conditions" seems to viol-ate basic tenets of organizational, policy, and network learning, and the simple desire of litigants to win their case, and served as personal motivation to explore this research to)pile in greater depth. (2) Although published in 1992, no follow-up research had been conducted on Epstein and Kobylka's findings. (3)

This research project does not focus on how interest groups tried to influence the Supreme Court, but rather on how interest groups responded when they found themselves on the losing side of legal change. (4) Understanding this research project requires some general background information on the concept-of legal change and how interest groups interact with the Supreme Court.


Legal change signifies modification or reversal on the part of the Court on a policy issue, as well as the legal arguments used to arrive at these revised policy decisions. (5) For example, in 2003, the Supreme Court in Lawrence v. Texas laded that state sodomy laws are unconstitutional, overturning its 1986 Bowers v. Hardwick precedent upholding such laws. In the Bowers decision, the Court found that an anti-sodomy policy was allowable as a legitimate state interest in promoting morality; whereas, in Lawrence the Court held, based on its substantive clue process jurisprudence, that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (6) The existence of legal change demonstrates the mutability of the law outside of the actions of the executive and legislative branches and the important role the Supreme Court plays in the policy arena.


It is too soon to evaluate how interest groups will respond to the Court in future gay civil rights cases based on the Lawrence decision. Immediately following the decision, however, Rev. Pat Robertson, whose American Center for Law and Justice (ACLJ) participated in the case, organized a public intercessory prayer vigil that initially called on the Devine to remove several of the justices who contributed to the majority decision. Robertson later clarified he prayed for a change of the justices' hearts, not for the stopping of them. Although this interest group response to legal change is probably used frequently in private, it is an unusual public response. Nor is it one that makes use of the formal means available for influencing the Court. Currently, interest groups attempt to influence the Court through two formal-channels: By bringing a case before the Court as a litigant or sponsor of a litigant, or filing an amicus curiae brief (7) with regard to a ease. As Baum states, "... because direct contact between lobbyists and justices is generally deemed unacceptable, interest group activity in the Court is basically restricted to the formal channels of legal argument." (8)


Sixteen cases were examined regarding aid to religious schools over a 31-year period, from Lemon v. Kurtzman (1971) to Zelman v. Simmons-Harris (2002). Each ease review included: the circumstances and parties originating the suit; the results of lower court opinions; the basic legal questions being put to the Court; the parties involved as litigants and amici; the majority, minority, and concurring, Court opinions; the legal reasoning supporting the Court s decisions; the shifts, if any, in Court doctrine from prior eases; and, the implications of the decision(s) for future cases. The parties involved were analyzed to examine how interest group participation changed from ease to ease: new interest groups entering, former participants leaving, changes in participation roles as litigant and amicus filers, and changes in joint party filings of litigant and amicus briefs. This helped distinguish the level of interest groups' involvement within the separationist advocacy coalition.

Content analysis of the briefs identified if and how new legal arguments were used. Such new legal arguments may range from the trivial to innovative. For example, a minor strategic adaptation would be the incorporation in the advocacy coalition's briefs of a justice's prior opinions to attempt to sway his/her decision-making; whereas a major innovation would be the presentation of new legal arguments in the briefs portraying a constitutional issue in a new way.

This study looked for the presence or absence of new legal arguments--was there stasis or adaptation? Notably, no bright line divided new arguments from previous ones. New arguments are not necessarily major shifts from previous arguments, and so can be subtle yet of great consequence for case outcomes. For example, Justice O'Connor's test on endorsement of religion (see below) was a subtle but important modification of Lemon's purpose and effects prongs. (9) In O'Connor's test, the purpose of a governmental act or action or its actual effect was analyzed to see if it favored one religion over others. If the action or act was neutral with regard to religion, then the act must be analyzed to see if it endorses religion over non-religion. Guliuzza claimed that O'Connor's endorsement test returns to-"the softer definition of separation introduced in Everson." (10)

In this essay, the alliance of interest groups that support the separation of church and state interpretation of the Establishment Clause are called "the separationist advocacy coalition," while their opponents are called "the accommodationist advocacy coalition." After analyzing the 77 briefs from over 90 interest groups of the separationist advocacy coalition, I conducted 12 elite interviews to gain a better understanding of the legal arguments used and how their arguments evolved. Through these interviews I learned the interest groups' rationale for the pattern of behavior found in the content analysis, providing a deeper understanding of how and why change did, or did not, take place.


The Court's Establishment Clause policies are in transition. In the last fifteen years, the Court has substantially modified its use of the Establishment Clause legal standard, the Lemon test, and even more significantly, the litigants who helped to create the Lemon test have lost all cases concerning state aid to sectarian schools. Not only are these litigants losing their cases, but they are witnessing the overturn of the precedents they helped establish. For example, Agostini v. Fe]ton (1997), overturned Aguilar v. Felton (1985), allowing for state paid secular instruction in sectarian schools. Mitchell v. Hehns (2000), overturned parts of Meek v. Pittenger (1975), and Wolman v. Walter (1977), allowing the state to supply equipment and instructional materials to sectarian schools. With the substantial modification of the Lemon test and the overturning of precedent, state aid cases to sectarian elementary and secondary-schools meet Epstein and Kobylka s requirement of having undergone legal change.

The selection of these cases over this time frame was ideal for this research project because of the instability of the Court's legal arguments regarding the Establishment Clause of the First Amendment (11) contrasted with the stability of the Court's membership during the research time frame of the legal change. Since the adoption of the Lemon test in 1971, Republican presidents have dominated Court appointments. The political environment has become increasingly hostile to the idea of a strict interpretation of the separation of church and state since the presidency of Ronald Reagan, and with the increased political influence of conservative religious interests. (12) Although the separationist advocacy...

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