A review of United States Reports, 1984-85 Term, by Warren E. Burger, et al.
What could be more straightforward than the constitutional injunction that “Congress shall make no law respecting an establishment of religion”? What passage could be more amenable to interpretation by common sense?
The Establishment Clause of the First Amendment prohibits Congress from establishing a national religion. Does it also prohibit a state from requiring private employers to give their employees a day off for religious observance? Does it prohibit a state from providing a moment of silence at the beginning of a school day during which students may, if they wish, pray silently? Does it prohibit a school district from sending teachers to private, church-run schools to provide remedial or supplementary instruction? According to Supreme Court decisions handed down during the 1984-1985 term, the Establishment Clause prohibits all of these things.
There are two main problems involved in contemporary establishment clause jurisprudence. One is the growth of the public sector and the consequent expansion of the potential applicability of the clause. The other is the substitution of Supreme Court “doctrines” for the text of the Constitution.
The Founding Fathers created a limited realm for governmental activity. When the Constitution was written, private enterprise was the rule, governmental enterprise the exception. Religious activity was regarded as part of the private realm (except in a few states that had established churches-and the First Amendment precluded the interference of the national government with those existing establishments).
The national government had only a few tasks to perform: to keep open the channels of commerce among the states and with foreign countries, to protect American shipping and resist foreign invasions, to coin money and establish post roads, to administer the frontier territories and deal with the Indian tribes. Congress had no delegated power (the unlimited character of the power to spend for the general welfare not then having been discovered) that could touch upon religious affairs.
Even the state governments, although left completely free by the national Bill of Rights to make laws respecting religious establishments, would have had little opportunity to touch on religious concerns in the course of their normal business. They had to punish crimes against persons and property, to build and maintain streets and highways, to organize and train the militia, to provide courts and courthouses for the resolution of private disputes.
Not only the business of America-including agriculture, manufacture, finance, and trade-but all of the activities that did not require the organized and coercive force of society as a whole, were left to private initiative and enterprise. The education of children, the treatment of the sick and the infirm, the relief of the poor, the training of workers, and the operation of alms-houses were works carried on by private, voluntary societies. Most of these were corporal works of mercy carried out under the auspices of one or another denomination within the Christian Church.
By the late twentieth century, we find that private charity has been almost completely displaced by public “entitlements.” Typically, money taken in taxes (or borrowed) by the federal government is distributed to state and local governments, which spend and administer it through semi-private agencies. Hospitals, clinics, child-care centers, food banks, and the like may be run by private charitable organizations, secular or religious, but in most cases their funding has been preempted by the government and they operate subject to government supervision and regulation.
Schools are a special case. Although public schools were unknown in 1789, they were invented shortly after that and soon became the norm throughout the country. Originally, public schools were the creation of the local community, whose members agreed to be taxed at the local level to support schools under local control. By the end of the nineteenth century, however, education had become a function of the state governments. Although still funded by locally self-imposed taxes, the schools were subject to state standards, and compulsory attendance was enforced, by state law. By the 1960s, the federal government had become a major provider of funds for public education, and hence was to become a major source of bureaucratic regulation.
Private education has always coexisted alongside public education in this country, and most of the private schooling has been done with religious sponsorship. Since the mid-nineteenth century the largest nonpublic provider of education has been the Roman Catholic Church. As the public schools have forsaken the teaching of reading, writing, and mathematics, in favor of sex education, political indoctrination, and the preaching as dogma of certain scientific hypotheses (e.g., evolution), parents of other religious persuasions concerned about the moral and spiritual development of their children have turned to church-related schools as well.
Parents and church members find themselves paying for two sets of schools, one of which they conscientiously believe cannot be trusted. But not all of the public money appropriated for schools goes to support instruction. A modern school also provides neutral services-some of them mandated by state law or federal regulations-such as diagnostic testing, physical therapy, remedial care, and even driver training. Are not the children who attend private schools entitled to receive the services their parents and friends pay for?
The case of education, therefore, parallels the case of other charitable works. Locally established, locally controlled schools have been replaced by an ever-growing educational bureaucracy. And, in addition to their teaching function, law or regulation, the schools are made dispensers of services which would otherwise be provided by the market or by private charity.
Americans have quite correctly always insisted that their governments maintain strict neutrality among religious groups and denominations. They have permitted a strictly secular performance of purely public functions, while reserving the bulk of their daily lives and activities for their private judgment, informed by conscience and religious insight. Americans have always been a religious people with a secular government of limited purposes. But now we find ourselves living in a country where everything is to some extent administered, regulated, or financed by government. If everything and everyone that government touches must be strictly secular, the growth of the public sector tares will choke the tender shoots springing from the good religious grain sown by the American people.
The second problem is the substitution of judicial doctrine for the text and original understanding of the Constitution. Typically, the Supreme Court decides a case, arguing from constitutional history and judicial precedent. In the course of the explanatory opinion, a word or phrase is used to indicate how the constitutional text is being applied in the case. Then academic commentators seize on the word or phrase, and, after the appropriate degree of analysis and argumentation, they elevate it to doctrine status. Thereafter, attorneys practicing constitutional law feel obliged to argue that their client’s case does or does not fall within the scope of the doctrine.
The first such doctrine in the area of politics and religion is the so-called “Incorporation Doctrine.” This doctrine, which the Supreme Court has never explicitly adopted, makes the provisions of the Bill of Rights (except for certain provisions that contemporary judges do not think are as important as the Founding Fathers did) binding as limits on the states by “incorporating” them into the substantive guarantees of “life, liberty and property” in the due process clause of the Fourteenth Amendment.
There is a certain intuitive reasonableness to this doctrine, but on close inspection it proves far too facile. The Bill of Rights comprises those guarantees thought essential to limit a government whose functions were mainly external: foreign affairs, national defense, and administration of territories. The specific guarantees clearly do not go far enough in those areas of internal government where the federal government had no responsibility (liberty of contract, for example). On the other hand, the specific limitations may be too severe when applied to bodies with general police power responsibility (jury trials in all civil cases involving $20 or more, for example). The free exercise of religion is surely protected as “liberty” under the Fourteenth Amendment, with or without incorporation of the First Amendment’s Free Exercise Clause.
The case of the Establishment Clause is entirely different. The Equal Protection Clause of the Fourteenth Amendment surely protects against any state legislation discriminating among citizens because of their religion, or giving any public preference to one religion over another. It ought to be unnecessary, therefore, for a court to go through the contortions necessary to make the prohibition on laws respecting an establishment of religion into a substantive liberty (or “liberty interest” as the lawyers say nowadays) to be incorporated in the due process clause.
But equal protection of the laws is not enough for certain types of litigants. The neutrality of the laws with respect to religion is not enough; the equal treatment of all persons regardless of religious persuasion is not enough. Those who masquerade as civil libertarians want to use the Establishment Clause and the Incorporation Doctrine to make (dare we say it) secular humanism the established national religion.
In Establishment Clause jurisprudence, the “purpose-effect-entanglement” test, derived from Lemon v. Kurtzman (1971) has now also risen to the status of “doctrine.” According to this doctrine, any act of any public body (national, state, or local; legislative, executive, or judicial) is unconstitutional if it has no valid secular purpose, or if it has the effect of advancing religion (whether that was its purpose or not), or if it excessively entangles the public body in religious activity (whatever its purpose or effect). No public act can survive the Lemon test unless it is neutral, not as between religions, but as between religion and irreligion.
The Establishment Clause decisions of the 1984-1985 term were all decided by applying the Lemon doctrine, that is, the “purpose-effect-entanglement” test. In Thornton v. Calder, a Connecticut law fell to the “purpose” prong of the test. The statute required every private employer in the state to give his employees their “sabbath” as a day off. There was a clear infringement of the freedom of employees and employers to bargain for the conditions of employment, but so straightforward an offense is of no interest to the modern Supreme Court; presumably state laws usurping the private decision concerning days off are perfectly acceptable.
Instead the Court considered the statute under its Lemon doctrine. What was the purpose of the statute? It was to facilitate the observance of days of religious obligation. The law was completely neutral among religious persuasions; one had only to declare that a certain day was one’s “sabbath” and one had that day as a day off from work. In that respect, it was an improvement on the law it replaced, which had made Sunday the state day of rest (a practice upheld by the Supreme Court in McGowan v. Maryland). But, the Court reasoned, the purpose of the law was to favor the practice of setting aside one day a week for religious observance, and therefore the purpose was to “advance” religion at the expense of irreligion.
The “purpose” prong of the Lemon test was also invoked in Wallace v. Jaffree to strike down a statute providing for a minute of silence in public schools that might be used for voluntary silent prayer. The legislative history of the statute was clear: The Alabama legislature was engaged in a misguided attempt to put prayer back into the public schools, and they wanted to see just what they could get away with. Consequently they enacted three statutory provisions: One provided for a moment of silence every day in the public schools; the second provided for the same moment of silence, specifically providing that it might be used “for meditation or silent prayer”; and the third provided for voluntary vocal recitation of a particular prayer. The third provision clearly ran afoul of the interpretation of the Establishment Clause in Engel v. Vitale (1962), and cannot have been intended to stay on the books.
In a fine bit of constitutional interpretation, the Supreme Court of the United States drew a bright line between an establishment of religion and no establishment of religion. A moment of silence “for meditation or silent prayer” is an establishment of religion; a moment of silence with no mention of possible silent activity is not an establishment of religion. The Alabama statute in question had not required prayer but had only mentioned it as an option; and it was completely neutral as to forms of prayer. But to go so far as to suggest prayer as a possibility was to favor the practice of praying, and thus to “advance” religion at the expense of irreligion.
The “effect” and “entanglement” prongs of the Lemon test were employed in a pair of cases, decided the same day, involving supplemental and remedial education programs provided to private school pupils. In Grand Rapids School District v. Ball, the school district leased classrooms in a parochial school building and sent district employees to the schools to provide supplemental instruction. All religious symbols were removed from the leased premises, and signs were posted indicating that the classrooms were under the control of the public school system. Nevertheless, the Supreme Court held that the effect of using rooms on the parochial school ground for public school purposes was to advance religion. The Grand Rapids’ program was held thus to violate the Establishment Clause.
Aguilar v. Felton involved a similar program funded by the federal government and administered by the local school district to provide remedial services to parochial school students. Particular care was taken to avoid any effect of advancing religion. State inspectors visited the program locations and monitored the delivery of services to ensure that no religion slipped into the publicly funded program. Curiously, it was that very diligence in satisfying the “effect” prong of the Lemon test that caused the program to fail the “entanglement” prong of the test. According to the Supreme Court’s doctrine of religious establishment, administrative provisions that cause state officials to monitor activities or examine financial records of religious institutions impermissibly “entangle” the state in religious affairs. Of course, the lack of such provisions would leave open the possibility of an “effect” advancing religion.
The history of Establishment Clause jurisprudence since the Supreme Court started pronouncing on the subject in 1947 indicates a curious reversal of priorities. A real concern for religious liberty would dictate safeguards against the possibility that the mailed fist of government would clamp a stranglehold on religious observance. Religion is too sacred, as well as too personal, to be dictated by politics. But in the decisions of the Supreme Court, the concern seems always to be to protect the government from the taint of religion.
The Supreme Court did decide cases on topics other than the establishment of religion during the 1984-1985 term. But anyone who had expected the triumph of common sense or of sound principles was again disappointed.
In the area of criminal procedure, the Court created from whole cloth two new “constitutional” rights. Under Ake v. Oklahoma, states are now obligated to furnish psychiatric assistance to criminal defendants to facilitate preparation of an insanity defense. Contrary to the recent tendency of the Court to defer to scientific knowledge and to professional expertise, the opinion recognizes that psychiatry is not an objective science capable of determining sanity or insanity, but rather that psychiatrists are “hired guns,” advocates much like attorneys, who merely present arguments for the prosecution or the defendant.
And under Evitts v. Lucey, convicted criminals are now entitled to the effective assistance of counsel (at public expense) in preparing the first appeal of their convictions. Anyone who has read the recent remarks of Justice Thurgood Marshall, or any opinion on the subject by California’s Chief Justice Byrd, will recognize that at least in capital cases “effective counsel” means “a lawyer who wins the case.”
A little-noted case of the 1984-1985 term that may prove to have more impact on law enforcement than any since Miranda v. Arizona (1966) turned on the Court’s reading of the prohibition against “unreasonable search or seizure.” In Tennessee v. Garner the Supreme Court held it unconstitutional for a peace officer to use deadly force against a fleeing felon without a reasonable belief that the felon both was armed and posed a danger to the policeman or to bystanders. The consequences of this ruling are potentially monumental. Because the Court has established this precedent as a matter of constitutional right, it is possible that rapists and burglars who are shot trying to escape arrest (or the criminals’ heirs, if police marksmanship is any good) may win whopping monetary judgments against local governments under the civil rights acts. One can only imagine a policeman, arriving at the scene of a crime and seeing the perpetrator running off down the street, conducting a due-process hearing on the question of whether the alleged criminal was armed and dangerous before drawing his own gun.
In another area of constitutional law, citizens who remember learning about federalism in a political science course sometime past will be dismayed by Garcia v. San Antonio Transit District. Congress, under its power “to regulate commerce among the several states” affects to set minimum wages, maximum hours, rates of overtime pay, and other working conditions for virtually everyone in the country. The commerce power has come to comprehend almost every species of human activity, but in National League of Cities v. Usery (1976) the Supreme Court recognized an exception-the commerce power does not extend to state and local government employees performing essentially governmental functions. The exception was a narrow one, but it seemed to be dictated by the American federal structure in general and by the Tenth Amendment in particular.
The 1985 Garcia case put an end, at least for the time being, to that exception. Justice Harry Blackmun, the one justice who changed sides between Usery and Garcia, did not even pretend to have altered his position on the meaning of the Constitution. Blackmun’s decision was apparently based solely on judicial convenience. It was too hard for federal judges to decide which functions of public employees were essentially governmental and which were not. Of course, it was Blackmun, in the notorious and disgraceful case of Roe v. Wade (1973) who invented the “trimester” theory of the viability of unborn children, also as a matter of judicial convenience. The death of theUsery precedent does not seem of much significance when compared to the deaths of 15 million babies authorized by Roe.
If there is any praise to be given to the Supreme Court for the results of its 1984-1985 term, it must be for resisting the effort to treat schoolteachers and principals as if they were policemen by requiring court-issued warrants before lockers could be searched for cigarettes (New Jersey v. T.L.O.) and the effort to have the mentally retarded declared a specially protected class for purposes of invalidating legislation under the Equal Protection Clause (Cleburne v. Cleburne Living Center).
As we approach the first Monday in October 1985, Americans must become apprehensive once again, for the Supreme Court is now sitting. God save the United States fromthis honorable court!