May 03, 2005

Religion and the Courts, Part I

Lots of people are no doubt familiar with the back-and-forth about freedom of and freedom from religion. Nevertheless, I've been reading Noah Feldman's wonderful new history of the debate over church and state in the U.S., Divided By God (it will be released soon, and it's much recommended), and then earlier this evening had a heated argument with a friend over church/state stuff, and realized I really don't have the various constitutional arguments at all straight in my head. But hey, that's what internets are for! So after a few hours of errant Googling and an amateur trawl through Supreme Court history, here's a briefly simplified outline on the subject that might be of interest, or perhaps superfluous for many. Still, it's here.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Where you stand on religion in America, of course, depends on what you think of both the Establishment Clause and the Free Exercise Clause. The history here is very complex, but it's safe to say that the Establishment Clause was originally meant to refer only to the national government—indeed, the religion portion of the First Amendment wasn't extended to states until a series of decisions in 1940 over whether Jehovah's Witnesses could be granted religious exemptions from saluting the flag. (Originally the Court said no; two years and three new FDR-appointed Justices later, the Court said yes, much to the chagrin of Felix Frankfurter.) But way back in the day, states like Virginia certainly had an established Anglican church and no one thought anything of it.

Anyway, it seems to me there are four "basic" positions one can take with respect to the two clauses (This schema is stolen directly from Charles Fried's Saying What the Law Is, by the way.):
1) The Philip Kurland position. Essentially, religion is treated much like speech here, and the government is supposed to be "religion blind" in all things. So the Court does not grant special exemptions from laws for religious reasons, or, really, accommodate religion in any way. On the other hand, the federal government is required to extend benefits to religious organizations just as it would any other organization. This seems decently coherent to me, but it ignores the fact that religion was quite obviously granted special import in the Constitution, since it was explicitly separated from the speech clauses. So…

2) The Justice William Brennan position. Here we get a very strict separation of church and state. Religious beliefs are to receive a high amount of immunity from civil law—certainly no forcing Jehovah's Witnesses to salute the flag if it tickles their conscience, for instance. On the other hand, religious organizations don't get any goodies and handouts from the federal government, period. This is a rather contradictory position.

3) The Michael McConnell position. Aka, the James Dobson fundie special. McConnell, mind you, is a possible Bush nominee for the Supreme Court. His take is that religious beliefs are very much protected from civil law, but also that there is a very high "ceiling" for the extent to which government can cooperate with religious groups.

4) The John Paul Stevens position. Aka, the "godless liberal" position. Very low judicial protections for religious expression (a position, it seems, Scalia actually supports). Very low "ceiling" for government cooperation with religious organizations (less Scalia love on this one).
So there's a lot of variation here. Now a little more history, by looking back at a few cases.

First, the Free Exercise Clause. In a 1963 case, Sherbert v. Verner, a Seventh-Day Adventist was fired from her job because she refused to work on Sundays. She was then denied state unemployment benefits, on account a bein' a slacker. The Court overturned the denial. Justice Brennan acknowledged that, yes, yes, this wasn't a case of government regulating her religious beliefs, and merely a regulation that posed an indirect burden on her religious expression. (Just as government regulations that pose an indirect burden on ordinary speech generally pass constitutional muster.) Nevertheless, when it came to religion, Brennan argued that there must be a "compelling state interest" to pose this sort of indirect burden. From what I can gather, it was a shocking decision and wholly unprecedented: why, earlier the Court had ruled in favor of anti-polygamy laws over the objection of Mormons.

But in 1990, a similar case—Employment Division vs. Smith—came before the Court that resulted in an opposite ruling. Ms. Smith was fired from her job because she was carrying a bit of peyote, useful for some Native American religious ritual but illegal in Oregon. She was refused unemployment benefits, on account a bein' a crook, and this time the Court upheld the denial; Antonin Scalia's decision declared: "[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."

Both of these cases are opposite extremes. If we followed Sherbert, then any government action—taxes, zoning laws, etc.—that posed an "incidental burden" on religion could be overturned willy-nilly. Especially since Courts aren't allowed to decide just how burdensome the religious burden in question really is. (In practice, though, it doesn't appear that many laws were overturned using Sherbert—usually the government could find a compelling "state interest," as when they made the Amish pay Social Security taxes to preserve the universality of the program.)

On the other hand, Smith doesn't offer religion any special protection at all. So long as the law in question isn't targeting religion specifically, it's fine. In fact, this actually protects religion expression less than speech is protected. After all, if a law puts an indirect burden on speech, then according to United States v. O'Brien, the state much show that the law "furthers an important or substantial governmental interest… and [] the incidental restriction… is no greater than is essential for the furtherance of that interest." As far as I know, there's no such middle ground in Free Exercise doctrine. Scalia's reasoning for his harsh view was that religious exemptions can always be carved out by legislatures themselves, who have historically been understanding about this sort of thing. But, of course, it's not likely that legislatures are always going to be overly generous to religious minorities, who are the ones needing protection, so this still seems like an imperfect compromise. Well, it's a hard needle to thread.

Next up... Establishment Clause. Ah, the good stuff, the one that gets everyone all riled up. Okay, Googling around, it seems the most oft-cited test for determining whether a state has complied with the Establishment Clause, was put forward in Lemon vs. Kurtzman:
[T]he statute must have secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an "an excessive entanglement of religion."
Okay, but there's a reason everyone seems to hate this thing. Right away we run into problems: what happens when legislatures want to do what Scalia says and carve out exemptions in laws for religious observers? (For instance, an exemption in a drug law allowing peyote in Native American religious ceremonies.) Uh, oh, violation! So there's a lot of muddle. And the muddle's made worse by the fact that many of the Justices are inconsistent on the matter. Those who want to set up a thick concrete wall between church and state, like Stevens and Ginsburg on the current court, often shrug over symbolic things like the prayer that opens Supreme Court sessions. Why draw this line? Who knows? Furthermore, they never go so far as to say that no taxes of any kind can go to support religious institutions—surely we're not ready to prevent publicly-funded firemen from putting out a church fire. (Likewise, no one objects to people using G.I. Bill benefits, etc. to attend private religious college.)

Then there are those who, like Michael McConnell, claim that so long as government isn't giving any special favors to religious organizations, it can lend them aid, so long as secular organizations are also eligible for aid. But the whole historical point of the Establishment Clause was that people wouldn't have to pay taxes for religious things they didn't support—on the grounds that this violated religious conscience. (Interesting note from Feldman's book: For a long time, the U.S. got away with religious schools by making them "non-sectarian Christian," which no one considered to be in violation of the Establishment Clause. Well, except for Catholics, but they were eventually beaten into submission.)

Then there's the middle ground, held by Sandra Day O'Connor in Wallace v. Jaffree, that the Establishment Clause prevents government endorsement of religion, where endorsement means anything that "sends a message to nonadherents that they are outsiders, not full members of the political community." So no student-led prayers at high school football games, or anything that might be construed as "indirect coercion." Government also can't disapprove, which would make adherents feel like outsiders. In other words, O'Connor envisions a respect for all people from all corners. The problem is that this leaves challenges to religious expression open to those who "feel offended," a very fuzzy and perilously subjective thing on which to base the separation of church and state.

And nowadays, it seems, the Court has gotten to the point where it has ruled that government funding for, say, private vouchers is okay, even if those vouchers are used for private religious schools, on the grounds that "public funds become available [to religious organizations] only as a result of numerous, private choices of individual parents of school-age children." (Mueller v. Allen) This came up in the 2002 case ruling in favor of Cleveland's voucher program.

All done for now! At any rate, I'm obviously not a lawyer, and a bit of time searching the internet does not a scholar make, so feel free to point out anything I've severely botched here. I'm not going to get into my thoughts on the whole matter quite yet, only because I wanted to get a rough sense of the actual constitutional issues first. On account a knowledge being cool and all.
-- Brad Plumer 4:34 AM || ||