WTF is Wrong with the Supreme Court?

Sorry for the blunt title but I’m angry. The short answer to the question is obviously “a lot.” The adequate long answer would take at least a year to write. So, for now, I’ll have to settle for a few brief statements on the Espinoza school-funding case.

In 2017 the Supreme Court ruled in Trinity Lutheran that the state of Missouri violated the Free Exercise Clause of the First Amendment when it excluded a school run by the Trinity Lutheran church from participating in the state’s school playground resurfacing program. This radical decision, written by Chief Justice John Roberts, set the stage for last week’s equally bad ruling in Espinoza v. Montana. The Espinoza decision, also written by the Chief Justice, declared that the Montana Supreme Court was wrong to dismantle the state’s scholarship program that provided financial assistance to students who wished to attend private schools, both secular and religious. The Montana court did so because it was in violation of their states’ constitution, and they also wanted to avoid the problem of treating religious schools differently than secular ones, so they ended the entire program. This should have been the end of the case, but the Supreme Court nevertheless took it up (it was likely the four conservative justices Alito, Gorsuch, Thomas, and Kavanaugh who granted review).

What makes this case so radical, even though it could have been worse, is that the Court ruled that states must include religious schools an any scholarship programs for private education. Roberts concluded that by excluding religious families and schools from participating in the program the state had discriminated against them in violation of the Free Exercise Clause.

Though shocking, it was not unexpected. The Supreme Court had long ago abandoned the principle of separation, which the conservatives on the Court insist is hostile to religion (it’s not), in favor of an accommodationist approach to religion. This view is not a recent invention of the current court. It has a long history going back at least to the 1980s. In the 1989 Allegheny v. ACLU case, the now retired Justice Anthony Kennedy wrote:

Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage, and the Establishment Clause permits government some latitude in recognizing the central role of religion in society. Any approach less sensitive to our heritage would border on latent hostility to religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion, and so to the detriment, of the religious. (1)

Anything short of accommodating religion is declared hostile to it, as if there were no benign reasons to exclude religion. This rhetoric of hostility to religion is part of a compelling narrative that the Religious Right uses to discredit the principle of separation. It has become a truism in conservative circles.

In the school funding realm, the Court began breaking down the barriers that barred religious institutions from receiving public funds in the 1980s (see Witters and Zobrest). But the real shift began with the 1997 Agostini v. Felton case which proclaimed that facially neutral government programs that provided aid to religious schools via private choice were not in violation of the Establishment Clause. (2) Several cases following this ruling took the logic laid out in Agostini and expanded it even further. (3) These cases established the facial neutrality and private choice duo as the guiding rule for funding cases. To achieve this outcome, these cases were largely aimed at diminishing the power of the Establishment Clause to bar public funding of religion. It has taken even more hits since then.

At this point, the Establishment Clause is so diminished that it hardly matters anymore. In both Trinity and Espinoza Roberts disposes of it fairly quickly. In both he cites Locke’s “play in the joints” concept to justify his brushing it aside. (Espinoza, p. 6) This “play in the joints” between the two religion clauses is built upon the assumption that the two are in conflict with each other, when in fact they are not. Unfortunately, this mistaken view has guided much of the Court’s First Amendment jurisprudence. This misunderstanding of the relationship between the two clauses is the product of a lot of bad history (a topic for another day). For now, just note that this notion makes it easier Roberts to dispose of the Establishment Clause.

To shore up his dismissal of the clause he adds that the Court has “repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.” (Espinoza, p. 7) Some may find this statement shocking, but it is the result of many years of chipping away at the power and reach of the clause. With the Establishment Clause out of the way, Roberts proceeds to his main line of reason using the Free Exercise Clause.

There are several important aspects of Roberts’s argument in Espinoza, but here I want to focus on just one aspect of his reasoning since no one else has made this point, which exposes the radical nature of this Court and its disingenuous posturing as a neutral interpreter of constitutional law. One of the keys to understanding Roberts’ ruling is his clever use of language. He conflates the category “religion” with the contents of that category (particular sects/religions). This rhetorical sleight of hand underlies both the Trinity and Espinoza cases.

The Free Exercise Clause, Roberts explains, “‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status.’” (Espinoza, p. 8) This framing of the clause suggests that the clause is about protecting those who are in this category called “the religious,” thus implying that the clause protects people who are religious rather than protecting people from religious discrimination and tyranny because of either their particular religious beliefs (e.g. denying the Trinity) or because of their religious identity (e.g. Jewish). The above statements quoted by Roberts comes from the Trinity case, which uses a 1993 case as precedent. In Church of Lukumi Babalu Aye, Inc. v. Hialeah the Supreme Court struck down several city ordinances in the South Florida town of Hialeah because they were targeted specifically, albeit not explicitly, at preventing the members of the Santeria religion from practicing animal sacrifice, a central aspect of their religion. (Trinity, p.6) They were targeted because they were members of an unpopular religion, not because they were “religious.”

Two other precedents used in Espinoza further illustrate Roberts’ trick. The first one comes from the landmark Everson case, from which Roberts quotes: “a State ‘cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation’” (Espinoza, p. 8) Note that the examples refer to discrimination against members of a particular religion and/or those who hold specific religious beliefs. The other case is the more recent Lying v Northwest Indian Cemetery Protective Assn in which the victims of discrimination were Native Americans whose particular religious beliefs clashed with the goals of the Forest Service. (Espinoza, p. 8) Again, the members of that Native American tribe were not victims of discrimination because they were religious, it was their particular religion that was the problem. In none of these cases were the individuals or groups targeted because they were religious per se.

In contrast to those cases, the state of Montana did not engage in that kind of prejudiced discrimination. There was no malicious or discriminatory intent by the state when it struck down the program. They didn’t discriminate against any particular religion; all religions were banned. Religion is singled out for special treatment in the state constitutions and in the U.S. Constitution for very good historical reasons, having nothing to do with hostility to religion. In fact, one of the reasons such anti-establishment provisions exist is to protect religion. Neither Montana, nor Missouri, engaged in the kind of “discrimination” that the Religion Clauses forbid. All religions, religious people, religious institutions, etc. are treated equally.

Nevertheless, Roberts chastised the Montana Department of Revenue and the Montana Supreme Court for following their state’s constitutional mandate that prohibits the use of “any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school…controlled in whole or in part by any church, sect, or denomination.” (quoted p. 3) This state constitutional provision is one of many state no-aid mandates which are often called “Blaines” or “Baby Blaines” in honor of the attempted federal constitutional amendment proposed by James G. Blaine in 1875. Blaine’s amendment was narrowly struck down in the Senate, mostly for states’ rights reasons. In the aftermath of this failure over the next 50 years 21 states adopted similar statements in their own constitutions. The claim made by those who oppose these constitutional mandates, and repeated by Roberts, is that they were “’born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’” (Espinoza, pp. 15-16) and as such they are in violation of the Free Exercise Clause and must go. Justice Thomas has been harping on this issue for years. As is typical for him he plays the long game and has hammered this message home by repeatedly mentioning it in his opinions every chance he gets. The history is seriously flawed. Surprise! Surprise!

But in Espinoza it is Justice Alito who took on the task of laying out this history, briefly noted by Roberts in the majority opinion, in his concurring opinion. His recounting of this shameful history, as he sees it, is itself shameful. Lawyers, and Alito is no exception, have a tendency to start with the desired conclusion and then proceed to make the evidence fit that conclusion. His brief essay on this topic is a great example of how NOT to do history. (yet another topic for another day) For those of you who are interested in this controversy a great place to start is Steven K. Green’s “Blaming Blaine.” (4)

While on the subject of Professor Green, I think it worth quoting this excerpt from his pointed critique of the Espinoza case:

There is so much contained in the various opinions in Espinoza v. Montana Department of Revenue that a college instructor could use that one case to teach an entire course about American church-state law: discrimination based on religious free exercise; the private choice exception to the establishment clause; whether the establishment clause is incorporated to the states; the history of the common schools; 19th-century anti-Catholicism; and the origins and meanings of state no-aid provisions (state “Blaine Amendments”). If that instructor used Espinoza to teach an accurate account of those various issues, however, it would be a pretty bad course. (5)

True indeed. However, it would make a great course if it was used as an example of bad constitutional law. Green side stepped addressing all of those issues, except the Blaines, for the same reason I have. The response would be so long that it would try the readers patience, not to mention the amount of effort that would go into such an undertaking. No doubt in the coming months law journals will fill up with responses to the recent spate of Supreme Court cases, and all of these issues will be endlessly debated.

So, what will be the impact of this decision? Many states already have scholarship programs that fund both secular and religious private schools, and this ruling won’t change them, but it does have implications beyond that. In light of this ruling, states are now required to fund private religious schools if they enact any program to fund private education, even in states with Blaines. While the Court didn’t explicitly strike down the “Baby Blaines” they made them ineffectual. So, for now a state can avoid the dilemma as long as it doesn’t create a program for private secular schools. But it will likely inspire some states to create such programs with the intent of helping to fund private religious education, a major goal of many school choice proponents, including Betsy DeVos, the scandalous education secretary. The real danger, however, comes as the Court continues on this path, using the same logic, to further expand access to public funds by religious entities.

Our public education system is already on life support as states have for years inadequately funded public education while at the same time diverting money to charters and private schools, which are mostly religious. The fallout from this ruling will only exacerbate the problem. In addition, it will further exacerbate the inequities in our education system. Opening religious access to public funds will also create the “animosities and jealousies” that the founders were so keen to prevent. (6) Not all religious groups will be able to compete in the scramble for access to the funds. This situation will benefit those religious groups that are wealthier and more common. And what will happen when Muslims, Scientologists, or the Satanic Temple seek to benefit from such programs? To deny them access would be actual discrimination. Will taxpayer be willing to have their tax dollars go to support a religion with which they disagree? One of the most fundamental ideas driving the disestablishment movement during the revolutionary period was the idea championed by Thomas Jefferson in his famous Statute for Religious Freedom, and parroted by pious religious dissenters in Virginia and elsewhere was:

That to Compel a Man to furnish Contributions of money for the Propagation of opinions which he disbelieves and abhors is Sinful & Tyrannical; That even the forcing him to Support this or that Teacher of his own religious persuasion is depriving him of the Comfortable Liberty of giving his contributions to the Particular pastor whose morals he would make his Pattern. (7)

Those who believe that this decision will be a boon for religion, by which they mean Christianity, might want to revisit the reasons that so many religious dissenters pushed for the separation of church and state in the early Republic. Taking money from the state, even indirectly, has never been good for religion as they repeated in their petitions, essays, and pamphlets. In response to a future proposal for a general assessment (a tax to support ministers of different denominations as opposed to a single denomination), Virginia’s Baptists wrote in the Virginia Gazette:

The consequence of this is, that those whom the State employs in its service, it has a right to regulate and dictate to; it may judge and determine who shall preach, where they shall preach, and what they must preach. The mutual obligations between preachers and the societies they belong to, should this be the case, must be evidently weakened; yea, farewel [sic] to the last article of the bill of rights! Farewel to ‘the free exercise of religion,’ if civil rulers go so far out of their spheres as to take the care and management of religious affairs upon them. (8)

If those religious schools are receiving public funds, will they then be required to adhere to the same rules and regulations secular public schools do?

The Right has played the long game and invested in creating a conservative legal infrastructure complete with think tanks, advocacy groups, legal organizations, and law schools meant to change the legal and political culture of this nation. They invested in the courts and that effort is paying off, maybe not as much as they would like, but by capturing the courts they are well on their way to achieving their goals even as they are out of step with the majority in this country. Trump just appointed his 200th federal judge, many of whom are demonstrably not qualified. (9) This is important because most cases are settled by the lower courts, and the Supreme Court takes only a small percentage of the cases appealed to them. These appointed judges are ideologically vetted for their support for right-wing causes, rather for their impartiality. (10) Now is the time for the rest of us to take the courts seriously. If you think voting doesn’t matter, you’re wrong! If you’re thinking about not voting, or voting for a third-party candidate, think of the courts.

Don’t let some of the recent headlines fool you (e.g. “Supreme Court hands down major decision reaffirming abortion rights in Louisiana case” and “The Supreme Court Just Ruled 5–4 to Protect Abortion Rights”). (11) The victories for DACA recipients and women’s rights are something to be celebrated but they are, nevertheless, temporary victories. (12) The ruling in Bostock v. Clayton County was a more solid win, but Justice Gorsuch, who along with the Chief Justice, was moved not by a sudden appreciation for LGBTQ rights but instead by his textualist principles. None of these decisions should be taken as an indication of the reasonableness of the Roberts Court. Roberts is known for being politically astute and for his “death by a thousand cuts” approach to judicial rulings. The strategy is meant to avoid those shocking headlines which might mobilize the left or further damage the reputation of the Court. Yet, he aims to achieve the same ends that his fellow conservative colleagues share. The result has been a slow but steady march to the far right.

  1. See Allegheny v. ACLU at https://www.law.cornell.edu/supremecourt/text/492/573
  2. Ellen M. Wasilausky, “See Jane Read the Bible: Does the Establishment Clause Allow School Choice Programs to Include Sectarian Schools After Agostini v. Felton?” Washington and Lee Law Review 56 (1999).
  3. See Mitchell v. Helms (2000) and Zelman v. Simmons-Harris (2002)
  4. Steven K. Green, “‘Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” First Amendment Law Review, 107 (2004).
  5. Steven K. Green, “Symposium: RIP state ‘Blaine Amendments’ – Espinoza and the ‘no-aid’ principle.” SCOTUS blog. https://www.scotusblog.com/2020/06/symposium-rip-state-blaine-amendments-espinoza-and-the-no-aid-principle/
  6. James Madison, “Memorial & Remonstrance Against Religious Assessments,” Founders Online. https://founders.archives.gov/documents/Madison/01-08-02-0163
  7. Jefferson wrote: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness; and is withdrawing from the ministry those temporal[ry] rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependance on our religious opinions…” https://www.monticello.org/site/research-and-collections/virginia-statute-religious-freedom

This particular quote comes from the petition from Northumberland County in Virginia during the fight over the general assessment bill (November 28, 1785). Jefferson’s phrase was also repeated in a petition from the Baptist Association (November 3, 1785): “That to compel man to furnish contributions of money to support that Religion which they disbelieve and abhor * sinful and tyrannical that to compel even * to support the Gospel who profess to believe it, is inconsistent both with the * and independent Spirit of the Christian Religion, and the custom of the Primitive Church.” (see http://www.virginiamemory.com/collections/petitions)

  1. Virginia Gazette (March 28,1777).
  2. https://www.politico.com/news/2020/06/24/senate-confirms-200th-judge-under-trump-337938
  3. https://rewire.news/article/2020/06/24/trumps-200th-judge/
  4. https://abcnews.go.com/Politics/supreme-court-hands-major-decision-louisiana-abortion-case/story?id=71254751 and https://www.motherjones.com/politics/2020/06/june-medical-services-russo-supreme-court-abortion-ruling/
  5. Department of Homeland Security v. Regents and June Medical Services v. Russo respectively.

In the Battle for the Wall of Separation between Church and State the Supreme Court Now has a Wrecking Ball

The Trinity Lutheran v. Comer Supreme Court decision has unfortunately not received the attention it deserves. This is partly a result of the distractions of the all-consuming Trump show, and partly because it was portrayed in the media as a limited decision of little importance beyond the specific case. However, the accompanying footnote that supposedly limited the decision was rejected by three of the seven (Chief Justice Roberts, and Justices Thomas and Gorsuch) who signed onto the decision. More significantly, the principle established by this ruling cannot, legitimately at least, be limited to this specific case. If their rulings are to mean anything, the Supreme Court must be guided by a set of principles which they apply consistently, rather than by arbitrary, ad hoc decisions. Sotomayor, writing for the minority (herself and Justice Ginsburg), clearly understands the implications: “In the end, the soundness of today’s decision may matter less than what it might enable tomorrow.” And what makes this case of such great consequence is that it “is about nothing less than the relationship between religious institutions and the civil government–that is, between church and state.” (see entire ruling here)

The U.S. Supreme Court 2017

The radical nature of this decision is best illustrated by this statement made by Chief Justice Roberts, writing for the majority: “Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.” What he is saying is that the decision made by Missouri’s Department of Natural Resources to deny a religious institution a grant paid for with public monies for constitutional reasons is discrimination against a church because of its religious status. This is stunning! Religion is THE thing called out by both the Missouri state constitution and the U.S. Constitution for special treatment. Of course, Roberts knows exactly what he is doing. Conservatives have long dreamed of dismantling the wall of separation of church and state. With the Supreme Court’s help, they have been dismantling it brick by brick, but the pace of destruction has accelerated. Now, with the principles established by the Trinity Lutheran ruling, they have a wrecking ball.

While radical in its scope this ruling is a continuation of the conservative push to emasculate the Establishment Clause while bolstering free exercise rights. To conclude that the state of Missouri violated the Free Exercise Clause by denying the grant to the church “solely because of their religious character,” Roberts needed to brush aside the constitutional prohibitions of both the Missouri State Constitution (“no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof”) and the U.S. Constitution’s Establishment Clause (Congress shall make no law respecting an establishment of religion”). According to Roberts, these seemingly clear prohibitions against public funding of religion were outweighed by the more substantial claims of the church to freely practice its religion.

Under the rules of strict scrutiny he dismisses Missouri’s state disestablishment requirement by insisting that the state’s “religious establishment concerns” were not a sufficiently “compelling” state interest. This flippant attitude towards something (the disestablishment of religion) which the religious dissenters fought so hard to achieve at this nation’s founding is astonishing. It shows a complete disregard for the protections which the “no establishment” principle provides for the rights of conscience. (see What the Religious Right Gets Wrong About Religious Freedom)

His disdain for establishment limits is also apparent in his treatment of the Establishment Clause. Roberts barely finds it necessary to explain its irrelevance. Ironically, it is the landmark Everson case that erected “the wall of separation” which provides the workaround. While Everson had generally set the precedent for a “high and impenetrable” wall between church and state, it also unwittingly provided the means with which to dismantle the wall. By ruling that the public funding of bus transportation to Catholic schools did not violate the Establishment Cause, the Everson majority established a precedent that ran contrary to its “high and impenetrable wall” metaphor. The glaring contradiction between the principle of separation and the green light given to the public funding of transportation to a private religious school did not go unnoticed. Justice Jackson, writing one of the minority opinions, highlighted the fact that “the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion, yielding support to their commingling in educational matters.” The implications of the incongruous Everson opinion were not lost on the four dissenting Justices.

The logic that prompted the usually discerning Justice Hugo Black to rule as he did was the idea that the bus services for school children were “public services,” such as police and fire protections, that do not fall under the rubric of impermissible religion-state entanglements. This same logic also underlies the Trinity decision, and convinced Justice Breyer to join the conservative majority. But the analogy is false, as Justice Jackson indicated when Justice Black first proposed it: “A policeman protects a Catholic, of course, — but not because he is a Catholic; it is because he is a man, and a member of our society. The fireman protects the Church school – but not because it is a Church school; it is because it is property, part of the assets of our society. Neither the fireman nor the policeman has to ask before he renders aid, ‘is this man or building identified with the Catholic church?’” State-funded transportation to a religious school is not like the vital services of police and fire protection.

Even more problematic was the distinction between the secular and religious functions of religious institutions, as Justice Rutledge in a separate dissenting opinion pointed out: “Payment of transportation is no more, nor is it any the less, essential to education, whether religious or secular, than payment for tuitions, for teachers’ salaries, for buildings, equipment, and necessary materials.” In other words, supporting the secular aspects of a religious institution is no different than supporting its religious purposes. Sotomayor, in Trinity, also highlighted the flaw in this thinking: “The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.”

Despite such flawed thinking the Roberts Court finds the Everson precedent useful in brushing aside the Establishment Clause. Sotomayor rightly scolds the majority for this astonishing break from the past, which “slights both our precedents and our history.” It “slights” history because public funding of religion was nearly universally rejected early in our history. In regards to precedents, the Trinity case is the first time the Court has approved direct public funding of religion without any “assurances that public funds would not be used for religious activity, despite the religious nature of the institution.” As problematic as these earlier precedents are, they were the precedents that should have guided the Trinity case. Instead, Roberts decided to push the envelope and approve the direct public funding of religion with no limits except in cases where the state can prove it has a compelling “state interest ‘of the highest order.’”

With all establishment concerns dismissed, Roberts can now turn to the Free Exercise Clause which forms the basis of his decision in favor of Trinity Lutheran Church. Roberts insists that the state’s discriminatory act “impose[d] a penalty on the free exercise of religion” of the church, thereby violating the Free Exercise Clause. Here, his case turns on the charge of “discrimination.” By denying the grant to the church’s learning center the state discriminated against the church “solely because it is a church.” Notice his slide from a constitutional mandate to “discriminate” (i.e. to treat differently) against religion and turned it into an act of illegitimate “discrimination” made on the basis of prejudice or hostility. A review of the precedents used by Roberts may help illustrate how he turned Missouri’s legitimate action into a case of unconstitutional “discrimination.”

In 1993 the Supreme Court (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993) found a series of laws passed by the city of Hialeah unconstitutional because they were neither “neutral” nor “generally applicable” laws. These laws were clearly an attempt by the city to prevent the members of the Santeria religion from sacrificing animals, which were an essential part of their religious ceremonies. This is clearly a case of religious discrimination, but is this the same kind of discrimination as that found in the Trinity case? Notice that the city of Hialeah was singling out a particular religion, whereas the state of Missouri was acting in compliance with a constitutional prohibition against all religions. The Trinity Lutheran Church in Missouri was not singled out, or denied, out of any hostility towards Lutheranism. Therefore, this case does not provide the precedent he needs to charge the state with “discrimination” against religion itself.

Another precedent provided by Roberts illustrates the same kind of deceptive maneuvering. In McDaniel v. Paty (1978) the Court struck down a Tennessee law that forbade ministers from participating as delegates in the state’s constitutional convention. Roberts characterizes this case as one representing discrimination against the “religious identity” of the ministers. The problem with this conclusion is that the exclusion was made on the basis of occupation, not “religious identity.” If the state had made a prohibition against anyone with a “religious identity” there would have then been a very small pool of qualified candidates for the convention. In addition, the constitutional ban against the clergy was enacted in order to prevent any potential church-state entanglements that might take them back down the road to ecclesiastical tyranny. Tennessee was not the only state to enact such laws, and the vast majority of those who supported this kind of ban were deeply religious. They were trying to protect both religion and government, thus they were clearly not doing it out of any kind of animosity towards religion. Once again, this precedent doesn’t provide the needed constitutional basis with which to charge Missouri with discrimination against religion itself.

To bring his point home Roberts includes a quote from H.M. Brackenridge’s 1818 speech in defense of a bill that would have allowed Jews to serve in public offices in Maryland:

If, on account of my religious faith, I am subjected to disqualifications, from which others are free…I cannot but consider myself a persecuted man…An odious exclusion from any of the benefits common to the rest of my fellow-citizens, is a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture. (1)

Brackenridge, who was not a Jew, was not complaining about a general ban on “religious faith” as it might appear based on this out of context quote. Instead, he was protesting against the unjust exclusion of members of a particular religion (Judaism) from holding public office. The religious test in Maryland was not a discriminatory ban against religion, it was discriminatory against Jews and all other non-Christians. Here again we see another attempt to equate prejudicially-motivated discrimination with actions made in compliance with the constitutional mandates of Missouri state and U.S. Constitutions. This unjustified move was called out by Sotomayor, who reminded the majority that “in this area of law, a decision to treat entities different based on distinctions that the RCs [Religion Clauses] make relevant does not amount to discrimination.”

This ruling has taken a constitutional state action and turned it into a case about discrimination against religion. This is partly because Roberts, like other conservatives, believes that the separation principle is itself a form of hostility to religion. They forget that the disestablishment of religion was essential to protecting not just their religious liberty but also religion itself. (see What the Religious Right Gets Wrong About Religious Freedom) Justice Jackson’s charge against the majority in Everson applies more aptly to the Trinity case: “the Court today is unconsciously giving the clock’s hands a backward turn.”

Notes:

  1. For more information on this “Jew Bill” see E. Milton Altfeld, The Jew’s Struggle for Religious and Civil Liberty in Maryland (Baltimore: M. Curlander, 1924), 110.

First Amendment Folly: An Evaluation of Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786” (Part I)

Click here for the Introduction.

I. James Madison and the Virginia Declaration of Rights (1776)

After declaring independence from Britain in 1776, delegates at a special Convention took up the tasks of creating a state constitution and a Declaration of Rights (DOR). As one of the first bills of rights created by the newly independent states, Virginia’s DOR was held up as a model expressing the enlightened values that were to shape the new nation. The distinguished statesman George Mason had been enlisted to draft this foundational document, and Mason did not disappoint. His draft was greeted with overwhelming praise in and outside the Convention. (1) As a result, few changes would be made to Mason’s draft, but one of these changes was prompted by the young and idealistic James Madison. Determined to set Virginia on the path toward religious liberty, Madison succeeded in altering the article concerning religious rights (Article 16).

James Madison

James Madison

The original article promised that “all Men should enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” Aware of the implications of this wording, Madison vigorously objected. The word “toleration” implies a hierarchy of religions in which some groups (or only one) are privileged, while all others are merely tolerated. After several attempts, and with the help of his future nemesis Patrick Henry, Madison’s wording (“all men are equally entitled to the full and free exercise of it [religion] accordg to the dictates of Conscience”) replaced Mason’s. (2) Madison indicated that his change “declared the freedom of conscience to be a natural and absolute right.” (3) Madison’s modification had important implications for the established Church of England, which had not been not legally disestablished at the Convention of 1776.

Concerning these events at the Convention, Esbeck makes several claims:

  1. Madison believed that “a civil state had no jurisdiction in matters of organized religion.” (p. 67)
  2. the “equality” clause was about the equality of religions, not individual equality. (p. 69)
  3. there was a “bifurcation of the protection of individual religious conscience, on the one hand, and religious disestablishment on the other.” (p. 70)

How well do these claims hold up against the evidence?

1. Did Madison believe that “a civil state had no jurisdiction in matters of organized religion”?

By claiming that it was “organized religion” alone that Madison saw as outside the bounds of governmental powers, Esbeck gives a misleading characterization of Madison’s views. Rather than speaking in terms of “organized religion,” Madison consistently claimed that it was “Religion” that was “wholly exempt from its [government’s] cognizance.” (4) (italics mine) (see endnote for more examples from his writings) This is a much broader limit on government’s power. If religion in general is beyond the jurisdiction of government then the legislature cannot pass any laws on the subject of religion except those protecting rights, as Madison and the dissenters frequently professed. For example, a popular dissenter petition requested that “the Legislature interfere[] only to support them in their just Rights and equal privileges.” (5)

Madison’s broader limit also places all government support (financial, legal, or symbolic) of religion outside the bounds of governmental powers. This strict separation of religion and government was seen as necessary to protect the individual rights of conscience. In Madison’s Memorial & Remonstrance protesting against a proposed tax to support religion, he wrote, “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” (M&R, point 1) Just as central to Madison’s case against “the establishment proposed by the Bill” was equality. It was Madison’s contention that

the Bill violates the equality which ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached. If ‘all men are by nature equally free and independent,’ all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an ‘equal title to the free exercise of Religion according to the dictates of Conscience.’ (M&R #4)

These two individual rights, which were enshrined in the Virginia DOR, were the foundation of Madison’s case against the establishment of a tax for religion. This cannot be squared with Esbeck’s “voluntaryism” principle, which denies that the movements against establishments were about protecting individual rights. Rather than speaking about establishments in terms of the relationship between two centers of power (“government and organized religion”), (6) Madison saw all establishments of religion as a threat to the natural rights of all men.

2. Did the new clause refer to individual equality or equality “among all religions”?

Consistent with his claim that establishment issues are not about individual rights, Esbeck claims that Madison’s equality clause “could be read to imply equality not with respect to individuals, but among all religions.” (p. 69) The only evidence presented in support of this claim comes from Edmund Randolph’s History of Virginia. In the relevant section, Randolph recounts that Patrick Henry was asked whether the article “was designed as a prelude to an attack on the established church, and he disclaimed such an object.” (7) There is seemingly nothing in this brief account of events that indicates that the clause was about the equality of religions. To understand how Esbeck sees proof in this simple statement for his position we need to keep in mind Esbeck’s conviction that objections to establishments were not about protecting rights. He therefore, insists that individual equality could not be the basis for “an attack on the established church,” and from there it follows that Madison’s clause had to be about the collective equality of all religions. To Esbeck only the equality of all religions “would disestablish the Church of England.” (p. 69)

The problem with Esbeck’s inference is that it rests on his own assumptions about the relationship between rights and establishments, for which he has not so far found any evidence in the eighteenth-century sources. In fact, all the evidence points in a different direction. The most obvious conclusion is that some were concerned that the individual right promised in Article 16 required the disestablishment of the Church of England, something the conservative Anglicans at the Convention were unwilling to do. They must have been reassured by Patrick Henry’s statement. Henry was most certainly unaware of the implications of the clause and, therefore, honestly saw no threat to the “established church.” Madison, aware that his proposal would fail if its implications had been known, seems to have decided to remain silent on the issue.

More problematic for Esbeck’s claim is the fact that the article itself undermines his claim. Here’s the entire final version Article 16:

That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. (8)

Notice that the equality of “all men” follows from the conscience of individuals. There is nothing in the passage about the equality of all religions or religious denominations. The article declares an individual right, which belongs to all equally.

The issue raised at the Convention was not about the distinction between individual and collective rights, but whether or not the individual right given in Article 16 necessitated the disestablishment of religion. To Madison and the dissenters, it certainly did. After the Convention, the dissenters immediately began their campaign demanding that “all Church establishments might be pulled down” on the on the grounds that it was contrary to the individual rights enshrined in the Declaration of Rights. (9)

The conservative delegates, who were Anglicans devoted to the establishment of their Church, failed to see the implications of Madison’s change to the article, and were, therefore, stunned when the dissenters began demanding the disestablishment of the Church of England. They had earlier rejected part of Madison’s first proposal (in italics below), but they failed to realize that this statement was a logical extension of Madison’s equality phraseology, as can be seen from his original proposal (the section in brackets is from Mason’s version):

[That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion,] all men are equally entitled to the full and free exercise of it accordg to the dictates of Conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges; nor subjected to any penalties or disabilities unless under &c. (10)

The “and therefore” makes it clear that the second (third if Mason’s opening clause is included) follows from the first (second). There is no way to see this as a statement about the equality of religions as opposed to the equality of individuals. This statement of individual rights would become the legal foundation of the dissenters’ case against all establishments of religion.

Once again Esbeck’s version of events does not hold up. The clause unequivocally places the individual at the center of its concern. The question now becomes, as it had at the Convention, about the relationship between this right and disestablishment.

3. Was there was a “bifurcation of the protection of individual religious conscience, on the one hand, and religious disestablishment on the other”?

Separating the individual right to the free exercise of religion from the issue of establishments is central to Esbeck’s project; his whole church-state theory rests on the assumption that individual rights have nothing to do with disestablishment. While it is true that states could and did grant all citizens the right to practice their religion while still maintaining an establishment, this arrangement is one of toleration and is not compatible with the religious liberty advocated by Madison and the dissenters. Maintaining establishments while granting the free exercise of religion creates a system of toleration, rather than religious freedom. Since this arrangement privileges the religious opinions of some citizens above others it is not compatible with religious liberty, which assumes individual equality. This is why, even without Madison’s “no privileges” clause, the dissenters began calling for the disestablishment of the Church of England, and all other privileging of a particular religion or denomination, on the grounds that establishments of religion are incompatible with Article 16. Esbeck’s assumption that the two issues are separate is undermined by this fact.

Conclusion:

So far there is little evidence supporting Esbeck’s voluntaryism principle. Given the minimal evidence associated with the Convention and the creation of the DOR, there is still the possibility that the dissenters advocated for a church-state arrangement along the lines of Esbeck’s principle. The real test of his claims will come with a review of the campaign against establishments that followed the enactment of the DOR. The first stage of this campaign begins with the closing of the Convention in 1776 and goes through 1779, when Jefferson attempts to pass his bill for Establishing Religious Freedom.

  1. Mason’s proposed DOR appeared in the Virginia Gazette (May 27, 1776).
  2. Madison’s Amendments to the Declaration of Rights, [29 May-12 June 1776],” Founders Online, National Archives (last update: 2014-12-01]). Source: The Papers of James Madison, vol. 1 16 March 1751-16 December 1779, ed. William T. Hutchinson and William M.E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 174-175.
  3. James Madison, Autobiography (December 1830) at Founders Online.
  4. James Madison, “Memorial and Remonstrance Against Religious Assessments” (June 20, 1785) at Founders Online. Here are some other examples from Madison’s writings (italics mine):

“Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former.” (Memorial & Remonstrance, Point # 2)

“The settled opinion here is that religion is essentially distinct from Civil Govt and exempt from its cognizance; that a connection between them is injurious to both…” (Madison to Edward Everett, March 19, 1823) at Founders Online.

“I observe with particular pleasure the view you have of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace.” (Madison to Edward Livingston, July 10, 1822) at Founders Online.

“Strongly guarded as is the separation between Religion & Govt. in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.” (Detached Memoranda, ca. 31 Jan. 1820) at Founders Online.

  1. “‘Ten-thousand name’ petition by Dissenters from whole state, for ending established church, and for institution of religious equality.” (October 16, 1776) at Library of Virginia: Digital Collection.  (accessed November 2016). Since the original document is difficult to read a summary of the petition can be found in the Virginia Journal of the House of Delegates of Virginia, 1776 (Richmond: Samuel Shepherd & Co., 1828), 15.
  2. Esbeck asserts that “the Establishment Clause was not so much about protecting individual rights qua rights (the Free Exercise Clause serves that role), as it is about the proper structuring of the relationship between two centers of authority, government and organized religion.” (61)
  3. Moncure Daniel Conway, Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph, 2d ed. (New York: G.P. Putnam’s Sons, The Knickerbocker Press, 1889), 30. The account by Randolph was written years after the event and was found among Randolph’s papers after his death. He also describes Patrick Henry as the author of the sixteenth article, which is contradictory to the majority of the evidence.
  4. Article on Religion Adopted by Convention, [12 June 1776],” Founders Online.
  5. The Virginia Journal of the House of Delegates (1776), 7.
  6. Madison’s Amendments to the Declaration of Rights, [29 May – 12 June, 1776]” at Founders Online.

 

The Politics of Deception: History, Knowledge, and the First Amendment

 In a 1988 lecture Supreme Court Justice Antonin Scalia declared that originalism was “The Lesser Evil” over other methods of constitutional interpretation. (1) Born out of a resentment against what was perceived as an activist liberal Supreme Court, the movement to make originalism the way to interpret the Constitution did not begin with Scalia’s speech, but his appointment to the Supreme Court in 1986 was a watershed moment for it. In the 1970s conservatives began calling for a return to the Constitution and its “fixed” original meaning as a way to restrain Justices and “depoliticize the law.” (2) As the movement expanded, history, as a resource in which to discover the original meaning, was set to go from a side-show in constitutional law to the main event. A contested past was now required to yield certainties, and to do so without the appearance of ideological bias. Nonetheless, it soon became clear that the push for originalism was a political strategy to reshape constitutional law in favor of conservative principles. (3) But for this to happen, originalism had to yield the “correct” original meanings. This need to yield the “correct” history ensured that the well-known abuse of history in law would reach new heights. Despite their ideological underpinnings, the products of originalist jurisprudence are packaged in the language of certainty and impartiality. For this reason, as noted by Eric Berger, “Originalism is particularly worthy of criticism.” By “creat[ing] an especially misleading illusion of certainty” it operates by deception. (4) Contrary to Scalia’s assertion, originalism is not, in fact, the lesser of two evils, but by virtue of its pretense to objectivity the greater evil. It is politics disguised as legitimate scholarship.

Associate Justice Antonin Scalia during the group portrait of the U.S. Supreme Court at the Supreme Court Building in Washington, Friday, Oct. 8, 2010. (AP Photo/Pablo Martinez Monsivais)

Associate Justice Antonin Scalia during the group portrait of the U.S. Supreme Court at the Supreme Court Building in Washington, Friday, Oct. 8, 2010. (AP Photo/Pablo Martinez Monsivais)

Despite its many flaws, especially the very problematic historical record, originalism has gained in popularity and enjoyed broad application. (5) Given its popular appeal and the fact that so many legal scholars and organizations are dedicated to this method it is unlikely to disappear any time soon. Even if the jurisprudence of originalism faded into obscurity, there is no doubt that history will remain a crucial resource to bolster legal arguments. History is seen to confer legitimacy upon constitutional arguments and enjoys broad popular appeal. But the motives, sensibilities, and training of legal scholars diverge considerably from that of a historian. This makes it more likely that they will abuse history in order to bolster their arguments in favor a pre-determined conclusion.

In response to the frequent misuse of history in law some have recommended that its use by jurists be abandoned altogether, but others recognizing the implausibility of this solution have instead offered advice and/or rules to help them use history responsibly. (6) Regrettably, there is little evidence that lawyers, judges, justices or legal scholars have taken the advice of these well-meaning scholars. With busy schedules and no professional consequences, other than the occasional historian calling them out for their mischief, there is little incentive to change. There are two factors that work in tandem to encourage the abuse of history. The first comes from within the field itself. Lawyers are trained in the adversarial method in which the point is to make the best possible argument in favor of a particular claim. This methodology is well-suited in the service of ideological goals. This gets to the second factor, which gets at the incentives and motives driving the abuse of history, and in part explains why attempts to improve historical scholarship in law have failed. The desire to further one’s ideological agenda is encouraged and supported by the proliferation of partisan political organizations, funded by wealthy donors. To understand how these considerations contribute to the poor state of historical scholarship in the legal profession, it will be necessary to examine each in more detail. Continue reading

“Justice Thomas Needs a Lesson in the History of the 2nd Amendment” | History News Network

“The overall point to be made is the Seventh Circuit did not relegate the Second Amendment to a “second-class right” as Justice Thomas claims. History refutes such a conclusion. The fact of the matter is the modern perception of the Second Amendment as guaranteeing broad firearm rights in both public and private is just that—modern.”

Source: History News Network | Justice Thomas Needs a Lesson in the History of the 2nd Amendment

Why the Second Amendment is not an individual right

The false belief that the Second Amendment confers an (absolute) individual right continues to prevent us from regulating guns, with tragic consequences. Yes, Supreme Court Justice Antonin Scalia, writing for the majority (5), declared that it was an individual right based on an original intentist interpretation of the amendment. Therefore, we must abide by this interpretation as long as Heller is in force, but that does not mean that Scalia’s interpretation of the history is correct. One of the problems, among many others, with original intent as a method for interpreting the Constitution is the fact that justices are not historians.  Too often original intent has been used to mask the individual preferences of the particular legal scholar. After spending years studying the history of the Religion Clauses of the First Amendment this fact has become all too clear.

If we are ever going to significantly decrease the senseless killings (as well as the large number of accidental deaths and suicides) that are made possible by the unregulated gun market, we need to debunk the Second Amendment myth that gun ownership is an individual right that can never be infringed. Gun regulation will not completely eliminate gun violence, but it can significantly decrease the violence (as it did in Australia).

Therefore, I want to include a few links by two prominent historians and one legal scholar who show why the Second Amendment fundamentalists are wrong:

  1. “To Keep and Bear Arms,”: This essay by Gary Wills is long, but worth it. He carefully and comprehensively destroys the arguments of what he calls the “Standard Model” school (i.e. the Second Amendment dogmatists who insist that the amendment confers to them an absolute individual right).
  2. The brief from the Pulitzer Prize winning historian Jack N. Rakove in the Heller decision.
  3. “How the NRA Rewrote the Second Amendment,” written by the author of The Second Amendment: A Biography, Michael Waldman. This essay deals more with the political movement that created the Second Amendment orthodoxy that now plagues us.

Please read and share these links!

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“What Does Marriage Equality Have to Do with Dred Scott?” – The New Yorker

Many of those who object to the Obergerfell ruling have compared it to the disgraceful Dred Scott (1857) decision that declared that even free blacks could not be citizens and that the Missouri Compromise was unconstitutional thus effectively nullifying the idea of slave free states. Amy Davidson debunks this flawed analogy in a discerning article at The New Yorker.  The analogy basically fails because “Dred Scott constrains liberty and Obergefell expands it,” but Davidson further breaks down the failures of this analogy by diving deeper into the Scott case. Thus Davidson’s exposé is also a reminder of the shameful racism that is part of our historical legacy.

Why are some using this analogy? Davidson concludes, “In part, Dred Scott is simply being used to give Obergefell a bad name—as pure invective, another way to call the decision rotten and the Supreme Court deluded. This is low enough; Dred Scott is a truly degraded decision, in a way that no other of the Court, conservative or liberal, has since matched. And, in part, the analogy reflects the notion, held by some contemporary conservatives, that they are now the ‘real’ victims of bigotry.”

Read the entire article here: What Does Marriage Equality Have to Do with Dred Scott? – The New Yorker.

 Eliza and Lizzie Scott, children of Dred Scott. Credit Image by Getty/MPI

Eliza and Lizzie Scott, children of Dred Scott.
Credit Image by Getty/MPI

Did the “right to privacy” Argument in Griswold v. Connecticut Hinder the Advancement of Women’s Rights?

Jill Lepore examines the complex history of women’s rights as it played out in the courts from Griswold v. Connecticut (1965), which ruled Connecticut’s law banning contraception was unconstitutional, to the present. Griswold was decided on the basis of a couple’s right to privacy, rather than a woman’s right to determine her own path in life. Lepore argues that this precedent carried forward in later judicial decisions to the detriment of women’s struggle for full equality as citizens. “There is a lesson in the past fifty years of litigation. When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened. But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.” Read her entire argument here:

From Griswold v. Connecticut to Gay Marriage – The New Yorker.

"Illustration by Cristiana Couceiro; Clockwise from Top Right: Lee Lockwood / The LIFE Images Collection / Getty (Griswold); Paul Morigi / Getty Images for HRC and Bill Clark / CQ Roll Call / Getty (Flags); Barbara Alper / Getty (Sign); Purestock / Getty (Supreme Court)"

“Illustration by Cristiana Couceiro; Clockwise from Top Right: Lee Lockwood / The LIFE Images Collection / Getty (Griswold); Paul Morigi / Getty Images for HRC and Bill Clark / CQ Roll Call / Getty (Flags); Barbara Alper / Getty (Sign); Purestock / Getty (Supreme Court)”

“Two Things You Don’t Know About Roe v. Wade that Will Surprise You” | History News Network

James Robenalt, in his new book January 1973, argues “that this controversial change in how the case was decided had a dramatic impact on American politics. The Roe decision activated the so-called Religious Right. But more importantly, because abortion is an issue about which many will not compromise—it is a life and death decision to some—the whole concept of “no compromise” as a political strategy entered our political bloodstream. Along with the other great events of January 1973—Truman’s death, end of the Vietnam War for the US, Watergate burglars’ trial, Nixon’s Second Inaugural, Roe and the death of Lyndon Johnson (on the same day as Roe)—the conditions set up for a government of deadlock.” To find out the two things about Roe that will surprise you, read his article:

History News Network | Two Things You Don’t Know About Roe v. Wade that Will Surprise You.

January 1973