Equality and Establishment: Reply to McAdams
Richard McAdams has written a wonderful post that challenges me to clarify and further elaborate my theory of the Establishment Clause, as elaborated in my recent book Liberty of Conscience.
Two prefatory remarks. First, I do not think that the various policies flowing from the Establishment Clause are merely instrumental to equal respect. I believe that they are concrete expressions of the idea of equal respect. Equal respect as a political value has little force unless and until it is cashed out in the form of concrete constitutional principles, and the interpretation of those principles. But these principles embody equal respect, in much the way that an expression of love embodies (and is not just a means to) love.
Second, I think that most recent Establishment Clause doctrine is on the right track (at least until we get to the disturbing issue of standing, where I believe the Seventh Circuit was entirely correct and the Supreme Court dangerously in error in Hein, an issue I take up in my 2006 Supreme Court Foreword in the 2007 Harvard Law Review). At one point, with cases such as Grand Rapids and Aguilar, I believe that the Court went too far in the direction of understanding separation to be a value in itself; along with later cases such as Agostini (which overrruled Aguilar), I criticize those few earlier cases, arguing that the "entanglement" prong of the Lemon test is potentially quite misleading if taken in isolation from other more fundamental values (as Justice O'Connor consistently asserted). Separation, I argue, is not a fundamental value in itself: it must be made sense of in terms of more fundamental values such as liberty and equality. Nobody wants total separation of church and state: we all believe that a burning church should get the aid of the fire department, that the public water system should serve churches as well as secular buildings, and so forth. Why? Because we see that it would be utterly unfair to deny churches basic public services that everyone else gets. How much separation do we want, and of what sort, and where: these are the questions we need to ask. My book argues that we can only answer them with recourse to the more fundamental values.
Now to McAdams's first point, about a rotation of prayers. In the area of public displays, we already do something like this: if enough different religions are represented, along with some gesture toward the non-religious, public displays with religious ingredients have been found constitutional, in cases such as Lynch v. Donnelly and Allegheny v. ACLU. (In Allegheny, the display that was upheld consisted of a Christmas tree, a menorah, and a sign from the Mayor saying that the whole display was "a salute to liberty." In Lynch, the upheld display contained a Nativity scene along with a hodgepodge of secular holiday materials.) But displays are different from school prayers, for three reasons: first, they do not coerce worship; second, they are out there where everyone can see what is going on and how the display is being administered; third, displays do not focus in particular on young people, who have been held in this area of constitutional law to be unusually susceptible to subtle forms of coercion (Lee v. Weisman).
McAdams is right that the policy he has in mind would be very hard to administer. The school in Abington PA attended by Ellory Schempp had such a policy, and the minute Schempp wanted to read from the Quran rather than from one of the approved Christian texts, all hell broke loose. Government simply can't police the operations of such policies to make sure they are fair, so that is a good reason to refuse to go that route. But there are other problems. If the rotating ritual were really one of prayer, many children would be asked to violate their conscience every day. It's clear that any form of coerced religious observance violates the consciences of many people. In the imagined case, most of the represented religions would object to their members reciting a prayer from another religion, so the coercion problem would be huge. It's also clear that, in the case of the young, that coercion problem can't be solved by giving such people an opt-out. Justice O'Connor, in her opinion in the Pledge of Allegiance case, noted that one criterion suggesting that an observance poses an Establishment Clause problem is that worship is required. (She concluded that the words "under God" in the Pledge do not pose that problem, but I think she applied a good principle wrongly to the case at hand: surely the words "under God," when recited as a part of the Pledge, do constitute an act of worship in a sense that violates the consciences of many people.) What I think would be both constitutional and helpful would be to encourage children from different religious backgrounds to make presentations about their religions, their holidays, etc., perhaps even showing some of the songs and rituals associated with the holiday, and even reciting a prayer themselves. (Non-religious children could make presentations on some moral hero of theirs, or a moral idea.) But the minute we get to the point of strongly urging all children to sing along (where the song is devotional in character), a problem for conscience begins.
I myself would like to see a lot more teaching about religion in the public schools. Such teaching has repeatedly been said by the Court to be constitutional. I believe more knowledge to be conducive to equal respect, in that it punctures damaging stereotypes. There are good reasons, however, why public schools are reluctant to get into that sort of teaching. Suppose a child from a religious Christian family submits a (historical) paper on Jesus and gets a B, while another child, submitting a (historical) paper on Mohammed gets an A. The Christian parents may well cause trouble. The difficulty of doing normal academic assessment of children's work in this area is immense, and all the greater in cases of religious groups that reject historical and comparative understandings of their own traditions. So, while equal respect would be fostered by more information, there are difficulties about even that moderate and clearly constitutional proposal.
Now to homogeneity. There are two distinct cases. In one case, the group of people who accept the same prayer is a separate nation (with a constitution like our own, including an Establishment Clause). In that case, perhaps McAdams's policy is all right, though, as he says, the shared observance would have to stop if anyone disagrees with it. I worry about even this much, since it closes the space within which children typically form their ideas, and makes it less likely that these ideas would be freely formed. But of course this case is merely fictional, since there is no nation of people who all believe alike. (Things were not like this even in the colonies, which were constantly banishing heretics and so forth.) So now let us turn to the second case, which is real. In this case, the people who agree on a prayer are a group within a larger nation, such as the U. S., which has many religions and many non-religious people, and a Constitution with an Establishment Clause. The difficulty here is exactly that identified by the Court in Kiryas Joel: in effect, a religious group has been given the reins of government, and this is ipso facto a violation of the Establishment Clause. The Satmar Hasidim in Kiryas Joel had very strong reasons for wanting to run their own public school district, given the refusal of the local public schools to guarantee a harassment -free education to their disabled children. (I note that insofar as the district didn't solve the problem, it was denying both parents and children their rights under IDEA, an aspect of the case that was too little noted in the Supreme Court's extensive discussions.) Nonetheless, the solution they adopted, setting themselves up as a governmental body, was deemed unconstitutional, and rightly so. So too with the schools imagined by McAdams, in which the school board in effect delegates part of its curricular (hence governmental) function to the religious group the inhabitants of the town all like. Even if they all like it, this delegation of governmental control to religion is an Establishment Clause violation.
On a separation theory of the Establishment Clause, one can easily see why the delegation is unconstitutional. But how does my equality theory make sense of the result? What's the connection to equality? Simply the one so alertly seen by James Madison, in the Memorial and Remonstrance: the minute any religion is given governmental power, this sends a signal that this is a preferred religious body, and, by contrast, a signal to other religions that they are dispreferred. That is an equality problem even if the community contains no members of the other religions, because the nation is larger than that community, and the statement is made in the context of that larger nation. Because Bryn Mawr (my home town) contains nothing but Episcopalians, Bryn Mawr can establish Anglican prayer. (I'm saying this facetiously: there were in fact Jews and Roman Catholics in Bryn Mawr, and even Presbyterians, but things were arranged so that their presence could be ignored.) That delegation to Bryn Mawr, however, sends a signal out beyond Bryn Mawr to Philadelphia and Chicago and so forth: Episcopalians have been given a privilege. They hold the reins of the Bryn Mawr government. Other religions who are not able to use wealth and zoning restrictions to ensure homogeneity don't get that privilege.
Moreover, even if somehow the delegation of government powers to the religion were utterly secret, it would still be a constitutional violation. Establishment is not just about hurt feelings; it is about the statement of equal respect for all that a decent society has made (or not made). McAdams's imagined statement would be an equality-violating statement even if nobody were subjectively wounded by it. More generally, to judge whether a policy displays equal respect we do not simply poll people to see how they feel about it. People may acquiesce in subordination, sometimes without realizing they are doing so. Justice O'Connor (following Madison) was right to think that the question should be asked from the point of view of an objective observer, acquainted with all the relevant contextual and historical information.
I hope that I have made at least a beginning of replying to McAdams's very challenging arguments, and let us hope that the discussion will continue.