The Remains of the Establishment Clause

The very first words of the Bill of Rights mark religion as constitutionally distinctive. Congress may not enact laws respecting an establishment of religion – in particular, acts of worship, religious instruction, or proselytizing. A pluralist, liberal democracy requires separation of civil government from these distinctively religious activities. From the middle of the 20 th Century until Justice O’Connor’s retirement in 2005, the Supreme Court energetically animated that principle of distinctiveness. In a series of decisions in the last decade, however, the Court has upended its longstanding approach to what is distinctive about religion in constitutional law. Notably, this process of change has unfolded with little engagement with, and occasional disdain for, the history and reasoning that underlay once-settled principles. The Court’s aggressive undoing of Establishment Clause concerns has been accomplished in large part by dramatically expanding Free Exercise interests. In this paper, we analyze these developments. Part I provides a conceptual overview of the idea that certain aspects of religion are constitutionally distinctive. Part II tracks the three major areas of Establishment Clause adjudication in which distinctiveness norms have withered. Part II.A. focuses on government financial support of religious entities, with particular emphasis on the recent trilogy, concluding in Carson v. Makin, about state discretion in such matters. Part II.B. turns to the collapsing law about state sponsorship of religious exercises and displays. Part II.C. confronts the stunning decision in Kennedy v. Bremerton School District, which threatens a 60-year-old enterprise of prohibiting official prayer in the public schools. In all three contexts, nothing is left except concerns about coercion and non- discrimination, neither of which depends on the Establishment Clause. Part III turns briefly to the newly declared supremacy of the Free Exercise Clause. We show how a Free Exercise-based conception of religious distinctiveness generates significant advantages for religious individuals (including staff in public schools) and institutions while simultaneously insulating them from state control. Government, once subject to a distinctive limitation on promoting or sponsoring religion, now must afford religion distinctive privileges. 1 Ira C. Lupu is the F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, at George Washington University