From Typology To Synthesis: Recasting The Jurisprudence Of Religion

• Author: L. Scott Smith
• Position: B.A., University of Texas at Austin
• Pages: 51-123

Page 51

Introduction

The United States Supreme Court's jurisprudence of religion has been plagued by multiple inconsistencies and contradictions. A careful examination of the case law scarcely reveals a single principle to which one can point and state with assurance that it is pre-eminent and inviolable. Commenting on the obviously irreconcilable and unpredictable results of the Lemon test¹ in Establishment Clause² cases, then-Justice Rehnquist wrote:

[A] State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing "services" conducted by the State inside the sectarian school are forbidden, but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Exceptional parochial school students may receive counseling, but it must take placePage 52 outside of the parochial school, such as in a trailer parked down the street. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects. Religious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.³

One might add to this litany of incoherencies many others, such as the following: A state may display a creche in a public place during the Christmas season so long as the creche is situated next to a Santa Claus house, reindeer, candy-striped poles, a Christmas tree, carolers, a clown, an elephant, a teddy bear, hundreds of lights, and a large banner proclaiming "Season's Greetings,"⁴ but the state may not display a creche that stands alone in a public place.⁵ A state may hire a Presbyterian minister to offer a prayer each day its legislature is in session,⁶ but it may not formulate a brief generic prayer for public school students to recite before class instruction begins.⁷

Cases adjudicated under the Free Exercise Clause⁸ also comprise a hodgepodge of anomalous results. An Amish family is free to disregard a state statute requiring compulsory school attendance by children until the age of sixteen,⁹ but Amish employers are not free to opt out of social security taxation,¹⁰ even though the government's not paying social security benefits to them would more than compensate for their paying nothing into the system.¹¹ A state cannot deny unemployment compensation benefits to a Jehovah's Witness for refusing to assist in the fabrication of turrets for military tanks, although such work would have violated no tenet of the Jehovah's Witness creed,¹² but a state can denyPage 53 such benefits to Native Americans who smoke peyote as part of an age-old Native American religious ritual.¹³

The jurisprudence of religion is, in the words of one constitutional law scholar, simply "a mess,"¹⁴ and in the words of another, "a muddle."¹⁵ These negative assessments are hardly surprising considering that the Court has made little more than pragmatic and fragmentary attempts to understand the nature of religious devotion and the ways in which it shapes and interacts with societal and state concerns. It is an ineffectual endeavor to pour over the Court's religion cases with the objective of uncovering a set of underlying jurisprudential principles that will serve to elucidate the various points of law. One must be content either to read order into virtual chaos or to satisfy oneself with holdings that are too unpredictable and divergent from one another to form a coherent system of judicial reasoning.

To understand the jurisprudence of religion, one must look beyond law and toward politics. Elsewhere I have constructed a typology by correlating fundamental positions taken with respect to religion in the First Amendment to various political theories.¹⁶ I have argued, in addition, thatPage 54 the full swing in recent years toward a "religion-neutral" jurisprudence has no single meaning and is little more than a ruse by which political conclusions are made to appear judicial.¹⁷ The Court's decision in a religion case signifies the particular political point of view that was able to claim a majority of the Justices on the date the decision was issued. As Larry Alexander might put it, "It's politics all the way down."¹⁸

The Court's jurisprudence of religion is in need of a broad synthetic approach, not for the dubious purpose of attempting to make this body of law apolitical, but in order to knit together a synthetic theory of religion cases in which each of the political theories I have previously identified¹⁹ has its place and function. The hope of such a theory is that it will bring increased understanding, balance, and predictability to this body of law. Radical zigs and zags, as well as hypertrophic extensions of the law, may be minimized, if not avoided altogether.

In this Article, I will attempt to draw kernels of insight from each major political perspective previously identified and, in the process, examine and analyze specific case law, with concentrated attention given to the school prayer cases and to the recent Pledge of Allegiance controversy. I will likewise continue in conversation with historical and philosophical writers, while attempting to move toward a broad creative synthesis in the jurisprudence of religion.

In the movement from typology to synthesis, the place to begin is with classical liberalism and the manner in which it envisions the individual in terms of an autonomous self²⁰ The question is whether the Court's jurisprudence of religion, which has been generously suffused with the spirit of this philosophy, is now being strangulated by it. I answer this question affirmatively. The next consideration is whether there are ways to correct the problem. I believe that there are, and I have found them in other political approaches to the same subject. De factoPage 55 establishmentarianism, revised liberalism, and communitarianism each have corrective contributions to make, depending upon the aspect of the jurisprudence of religion under consideration.

I Classical Liberalism and the Problem of Boundless Autonomy

A The Value of Autonomy

As I have explained elsewhere, Immanuel Kant and John Stuart Mill have profoundly influenced the meaning of the term "autonomy" in modern parlance.²¹ For Kant, the...