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The Establishment Clause is Not in Decline

This column expresses the views of Asma Uddin, senior scholar at the Religious Freedom Center.

A recent panel organized by the American Bar Association asked my fellow discussants and I whether recent U.S. Supreme Court decisions signal a decline in the Establishment Clause.

Specifically, it noted that the court’s decision in Espinoza v. Montana Department of Revenue (2020) moved us closer to an “equal treatment” reading of the Establishment Clause that is very different from the view that the clause almost completely prohibits the use of taxpayer funds to support religious organizations. The discussion prompt also asked whether the court’s decision in religious symbols cases like American Legion v. American Humanist Association (2019) dilutes establishment protections. On both questions, my position is that the Establishment Clause is not losing vitality. The court in recent decisions has added clarity where it was sorely missing and, in the process, has protected religious liberty vigorously. The unifying principle across the cases is about enlarging religious choice and protecting religious autonomy — historically referred to as “religious voluntarism.”

First, some background on the cases:

Espinoza v. Montana Department of Revenue (2020)

The Espinoza decision built on the 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, where the court said the state could not deny a grant for a new playground surface to a childcare center simply because the center was church-operated. Similarly, in Espinoza, the court said that the state (in this case, Montana) could not exclude religious schools from receiving tax credit-funded scholarships under its school choice program simply because of the school’s religious status. While for some observers, Trinity Lutheran was defensible because playground surfaces are more obviously secular, the court’s free-exercise principle was consistent across both cases: State programs that make religious entities ineligible to compete simply because of their religious status engage in status-based discrimination in violation of the Free Exercise Clause. (As for the Establishment Clause, the parties in the case did not dispute that the clause allowed such aid.)

Montana had excluded religious schools because its state constitutional “no aid” provision prohibits “any direct or indirect appropriation or payment from any public fund or monies … to aid any church, school, academy [or other institution] controlled in whole or in part by any church, sect or denomination.” The court responded: “To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation …. Such status-based discrimination is subject to the strictest scrutiny.”

American Legion v. American Humanist Association (2019)

In American Legion the court, by 7-2 vote, upheld the display of a Latin cross on government land. At issue was a 40-foot “peace cross” in Bladensburg, Md., which served as a memorial for local fallen World War I soldiers. Six of the seven justices in the majority sharply criticized another establishment test, the Lemon test, and five of them said they would instead look to historical practices and understandings when deciding the constitutionality of religious symbols like the peace cross (this historical approach is part of a larger move toward interpreting the Establishment Clause according to its original meaning). Justice Samuel Alito, in a part of his opinion commanding a plurality, collected examples from federal historical events. He also pointed out the court’s reference to history in cases involving prayers before legislative sessions. In Town of Greece (N.Y.) v. Galloway, for example, the court held that the practice of opening legislative sessions with a prayer had been in place since the First Congress, which shows “that the framers considered legislative prayer a benign acknowledgement of religion’s role in society.”

Consistent Establishment principles

Across both Espinoza and American Legion, the court embraced an interpretation of the Establishment Clause that protects and expands religious voluntarism by preventing state interference in (1) the voluntary choices of its religious citizens; and (2) the autonomy of religious organizations. The Trinity Lutheran and Espinoza line of cases, for example, does not compel a state to provide funding for K-12 religious schools. A state may continue to provide money and other aid only to public schools and exclude all private schools; states can also require that religious schools be accredited and meet all of the requisite standards. The point is not to privilege or prefer religion but instead to enlarge religious choice by not structuring financial incentives in a way that pressures individuals to choose secular schools over religious ones.

The American Legion decision is also in many ways centered around religious voluntarism. The objectivity the historical test used in that case prevents the type of over-reach that subjective approaches, like the Lemon and endorsement tests, have resulted in.

The Lemon test (named after the 1971 case Lemon v. Kurtzman) says the government cannot have the primary purpose or effect of “advancing” religion or become “excessively entangled” with religion. The endorsement test (announced in 1984), asks whether a hypothetical “reasonable observer” thinks the government is either endorsing or disapproving of religion. Because these tests both require subjective inquiries — for example, what is the primary effect of a religious display, or what does the reasonable observer think — they leave religious expressions vulnerable to the perceptions and biases of the judge deciding the case. By taking out that subjectivity, the historical test does a better job of leaving religion as untouched by government power as possible.

Seen from this vantage point, then, the Establishment Clause is not in decline. The unifying principle of religious voluntarism helps add clarity where previous establishment analyses made the jurisprudence murky.

Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum. Her email address is: [email protected].

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