UNTANGLING ENTANGLEMENT.

• Author: Barclay, Stephanie H.
• Position: Taking Stock of the Religion Clauses

ABSTRACT

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would we be essentially throwing the baby out with the bathwater? This Article cautions that this might be the case.

A close analysis of the Court's entanglement jurisprudence, compared against historical support for the various applications, suggests that entanglement jurisprudence ought to remain good law in at least two contexts. First, where it has protected religious groups from government interference with the autonomy, internal affairs, and administration. Second, where it prevents government from treating certain religious groups in a preferential way, including by granting monopoly power in the performance of public functions. On the other hand, the Court's entanglement precedent is on far shakier historical ground in several contexts, including anti-sectarian skepticism of any sort of government aid to religious groups (and accompanying monitoring requirements to avoid religious use of funds), concerns about political divisiveness when government interacts with religious groups, and opposition to government classifications necessary to provide religious exemptions. If the Court were to modify its entanglement analysis to disregard a historical applications and embrace the historical ones, the upshot would be far less apparent tension between the Religion Clauses. Such an interpretation could facilitate an increase in religious pluralism and human flourishing and a decrease in unnecessary cultural fights aimed at excluding religion from the public sphere.

INTRODUCTION I. THE EVOLUTION OF ENTANGLEMENT ANALYSIS A. The Anti-Sectarian Roots of Entanglement B. The Pivot to Religious Autonomy C. Lemon s Prophylactic Entanglement Related to Public Support D. Political Entanglement E. Entanglement with Public Functions F. A Meandering Approach to Religious Exemptions II. UNTANGLING THE HISTORICALLY GROUNDED ASPECTS OF ENTANGLEMENT A. Historically-Defensible Applications of Entanglement B. Dubious Applications of Entanglement III. CONCLUSION AND IMPLICATIONS INTRODUCTION

In the wake of the Supreme Court's recent decision in American Legion, (1) scholars have begun to debate the fate of the infamous Lemon (2) test. Six of the justices in American Legion seem to be in favor of rejecting the Lemon test to some extent. Justice Alito (joined by Chief Justice Roberts, Justice Breyer, Justice Kagan, and Justice Kavanaugh) criticized Lemon in the context of symbol cases, (3) Justice Kavanaugh stated that "[American Legion] again makes clear that the Lemon test does not apply to Establishment Clause cases," (4) Justice Gorsuch suggested that Lemon is effectively "shelved," (5) and Justice Thomas went as far as to say that the Court should "overrule the Lemon test in all contexts." (6) Justices Gorsuch and Kavanaugh argued that Lemon should no longer be good law, (7) and Justice Thomas favored expressly overruling Lemon. (8) A plurality opinion observed that the Lemon Court's "ambitious[] attempt[] to find a grand unified theory of the Establishment Clause" has given way to "a more modest approach that focuses on the particular issue at hand and looks to history for guidance." (9) In particular, the Court criticized the first two prongs of the Lemon test, focused on secular purpose and the effect of a law. (10) Scholars such as Michael McConnell have similarly sharply critiqued the first two prongs of the Lemon test, as "several steps removed from the actual experiences that lay behind the [original] decision to deny the government authority to erect or maintain an establishment of religion." (11)

Despite these clear criticisms of Lemon's first two prongs, the Court left the status of Lemon's third entanglement prong much less clear. (12) And the Court just relied on entanglement concerns in a case decided this term. (13) It thus appears that the entanglement strand of the Lemon analysis remains good law to some extent. But in which contexts, and why? Many scholars and jurists have argued that the Supreme Court should abandon entanglement analysis altogether, describing the test as incoherent, nonsensical, empty, and paradoxical. (14) Others have argued that entanglement has served as "a blessing in disguise for religious choice and diversity." (15)

The Supreme Court has insisted that the doctrines governing Establishment Clause questions look to the "specific practice[s]" of history. (16) The question this Article explores, then, is whether any of the Court's entanglement jurisprudence finds support in the historical record regarding establishment of religions. Part I of this Article traces the evolution of the Court's entanglement jurisprudence and identifies at least six categories in which entanglement has taken on unique meaning. Part II of this Article untangles which of these applications seems to be more grounded in historical evidence about original concerns that led to an Establishment Clause and which applications are ahistorical judicial creations. It concludes that entanglement analysis fits with the historical record in two primary contexts: First, when it has protected religious groups from government interference with the autonomy, internal affairs, and administration. Second, entanglement analysis finds historical support where it prevents government from treating certain religious groups in a preferential way, including by granting monopoly power in the performance of public functions. While the Court need not continue these lines of cases under the label of "entanglement," this Article argues that this jurisprudence should remain good law. On the other hand, the Court's entanglement precedent is on far shakier historical ground in several contexts, including anti-sectarian skepticism of any sort of government aid to religious groups (and accompanying monitoring requirements to avoid religious use of funds), concerns about political divisiveness when government interacts with religious groups, and opposition to government classifications necessary to provide religious exemptions. Part III then explores the implications of modifying entanglement to conform to a historical approach, including how using history as a guide would curtail applications of the law that seemingly place the Establishment Clause and Free Exercise Clause in tension.

1. THE EVOLUTION OF ENTANGLEMENT ANALYSIS

   This Part traces the evolution of the Court's entanglement jurisprudence and identifies at least six categories in which entanglement has taken on unique meaning: anti-sectarian roots, religious autonomy or interference with internal church functions, Lemon's prophylactic entanglement related to public support of religion, political entanglement, entanglement with public functions, and the Court's meandering entanglement approach to religious exemptions.

   1. The Anti-Sectarian Roots of Entanglement

      The legal concept of entanglement has a somewhat dubious pedigree at the Supreme Court. Entanglement is now most commonly associated with the three-prong Lemon test, created in 1971. (17) But it is the 1948 decision in Illinois ex rel. McCollum that marks the Supreme Court's first use of "entanglement" as a legal test to assess Establishment Clause violations. (18) There, the Court struck down an optional program parents could consent to which involved release time and religious education for students. (19) The education program was offered by a voluntary association, which had been formed by "interested members of the Jewish, Roman Catholic, and a few of the Protestant faiths." (20)

      In a concurring opinion, Justice Frankfurter asserted the principle that "the public school must keep scrupulously free from entanglement in the strife of sects." (21) In the case before it, the Court found this sort of problematic entanglement because "the State's tax-supported public school buildings" were being used by the religious program "for the dissemination of religious doctrines," and the state provided aid to the program in the form of the State's "school machinery." (22) The Court determined that this was not a "separation of Church and State." (23)

      To justify the position that this public support was problematic, Justice Frankfurter stated, "[B]y 1875 the separation of public education from Church entanglements, of the State from the teaching of religion, was firmly established in the consciousness of the nation." (24) Justice Frankfurter then quoted a speech by President Grant advocating for the federal Blaine Amendment, which would have prohibited public funding of "sectarian" schools. (25) In this speech, President Grant stated, "I predict that the dividing line [in our country] will not be Mason and Dixon's, but between patriotism and intelligence on the one side and superstition, ambition and ignorance on the other." (26) This opinion also quoted approvingly President Grant's next statement, that "neither the State nor nation, nor both combined, shall support institutions of learning other than those sufficient to afford every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical dogmas." (27) Justice Frankfurter also noted that "every State admitted into the Union since 1876 was compelled by Congress to write into its constitution a requirement that it maintain a school system 'free from sectarian control.'" (28)

      Congress ultimately narrowly...