Equality and Liberty: a Reply to Richard McAdams
Richard McAdams's forceful reply requires me to clarify my view about the relationship between non-establishment and liberty. First of all, I do not hold that equality is the only value protected by the Religion Clauses. Throughout my book I emphasize that liberty must be understood to be a separate value. We could satisfy equality by a regime in which nobody had very much liberty, and that would be a very bad regime. Consider, as an analogue, the treatment of sexual orientation under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. According to Justice O'Connor, in her concurring opinion in Lawrence v. Texas, sodomy laws should be struck down because they offend against equality (in the sense that the Texas law was limited to same-sex acts). The majority opinion, authored by Justice Kennedy, argues (following the analysis proposed by Lawrence Tribe), that liberty is the key value, and that the Due Process Clause is its home: we do not want a regime in which all have equal sexual liberty but nobody has very much of it. (Justice O'Connor did not actually reject that idea, since her point was that equality grounds sufficed to throw out the sodomy law in question, and that this narrower ground would not require the Court to overrule Bowers v. Hardwick: so she may not ultimately have disagreed with Justice Kennedy's analysis, she just thought it was too much too soon.)
So I do hold that liberty is a separate value protected by the Religion Clauses (as also by the Fourteenth Amendment). I hold, however, that the liberty interest is protected above all by the Free Exercise Clause, and that the main contribution made by the Establishment Clause, insofar as it goes beyond the Free Exercise Clause, is the protection of citizens' equality. I do not think that equality is the only value protected by the Establishment Clause. I agree with Madison that non-establishment protects churches from state meddling and the political process from church meddling; it is good, ultimately, both for religion and for government. So there's a modest way in which a norm of non-entanglement or separation can serve, for me, as a constitutional value independently of equality. (One case that shows this, I believe, is Corporation of Presiding Bishops v. Amos, where the Court held that to police the boundary between religious and non-religious occupations, in applying non-discrimination law, would involve the courts in too much meddling with religion.) Nonetheless, it seems to me that the major reason why we should oppose a benign (liberty-preserving) establishment, like the one in Virginia against which Madison spoke, is, above all, Madison's central reason: even a benign establishment makes a statement that citizens do not all enter the public square "on equal conditions."
I hold, in addition, that equality considerations are present, as well, in the Free Exercise Clause: cases such as Sherbert v. Verner show that it is not enough to give everyone some liberty, or even ample liberty: the conditions of liberty must be the same for all. On this basis I defend the doctrine of Free Exercise accommodation: the reason why minorities ought to have accommodations is that laws passed by majorities often give minorities unequal liberty conditions. (There is an analogue to this in the Fourteenth Amendment tradition as well: Justice Kennedy, and Lawrence Tribe, emphasize that Due Process fundamental liberties have an equality component, in that the conditions of liberty must be the same for all.) So, as I often say in the book, equality is present in both clauses, and can be seen as a glue that holds them together.
But if I hold that there's an equality component to Free Exercise, do I also hold that there's a liberty component to Non-Establishment? This is really the direction in which McAdams is pressing me. And of course, since I've raised the Fourteenth Amendment parallel, I have to grant, immediately, that there we do see something of the sort: fundamental rights such as the right to vote and the right to travel are recognized as implicit in the Equal Protection Clause, not the Due Process Clause, while other fundamental liberties of personal association and sexual choice are protected under the Due Process Clause. I'd say, first of all, that this tradition is pretty confused and confusing; sometimes it is difficult indeed to tell which Clause the Court is analyzing a case under. (This is particularly true with cases involving the so-called right to marry.) But insofar as it makes any sense to recognize liberty interests as inherent in the Equal Protection Clause, I think it is because of the very intimate connection of certain liberties to political equality. The right to vote certainly lies in the domain of equality, is part of what it is for someone to have the equal protection of the laws. Whether that is true of the right to travel is less clear.
In any case, what I do want to say most emphatically, returning to the Religion Clauses, is that the theory of the Establishment Clause that holds that coercion is a necessary element of an Establishment Clause violation is a very bad theory. Justice Kennedy messed up the doctrine considerably when he (apparently) accepted that theory in Lee v. Weisman, and we ought to reject it today. As I argue in my book, following Douglas Laycock's fine work on this question, the historical justification proffered for this interpretation of the Establishment Clause is utterly unconvincing, and the result of accepting the non-coercion theory, as Justice Souter forcefully stated in Lee v. Weisman, would be to render the Establishment Clause a "virtual nullity." A popular conservative position, held, for example, by Michael McConnell, seeks a strong Free Exercise Clause, including the protection of accommodation, while at the same time seeking a greatly weakened Establishment Clause. The non-coercion theory has been a prominent vehicle of that weakening. We must insist that equality/endorsement considerations are central to the Establishment Clause. Thus, even a non-coercive policy can violate it.
Can coercion violate it also? Let us turn to McAdams's first hypothetical. I see no reason why this case should be handled under the Establishment Clause. It seems to me best handled either under the Free Exercise Clause, as a case of diminished liberty of conscience, or else as a case of coerced speech under the Free Speech Clause. The nearest analogue seems to be the required Pledge of Allegiance/Flag Salute, upheld in Gobitis, and found unconstitutional in Barnette. The dissenters in Gobitis analyzed the case as a Free Exercise violation, whereas Justice Jackson in Barnette treated it as a Free Speech violation. In my book I prefer the Free Exercise analysis, while granting the immense importance and resonance of Justice Jackson's opinion. I'm not sure why we would ever want to analyze a case of coercive religious observance (whether from many religions or from one) as an Establishment Clause violation rather than a Free Exercise or Speech Clause violaton.
Let me now turn to the second hypothetical; I'm grateful to McAdams for spelling it out further. I now see that it is not a clear-cut case of giving a religious body the reins of government. Whether it falls under that line of cases will depend on some further facts, as State of Oregon v Rajneeshpuram shows. In that case, a homogeneous religious group constituting a town was held to violate the Establishment Clause because of the way in which the group had succeeded in restricting migration into the community through its policies regarding property. So we would need to find out whether there were similar forms of discouragement at work in the McAdams case. If not, then we need to do more work to show why the policies McAdams imagines might be constitutionally objectionable. I think where the children are concerned there would still be a Free Exercise problem: even though every adult in the community loves the prayer in question, we just can't assume that this is already true of young children, and there is therefore a coercive element in institutionalizing it in schools. We have to allow that young children haven't yet opted for the religion of their parents, so to close off the space of options for them seems to me problematic even though they might not dare to ask for an opt-out, or, perhaps, even realize fully that they want one.
The next thing one should observe is that insofar as there is homogeneity and agreement, if the society is an open one, and no coercion or restrictive policies regarding property are in force, then the agreement is likely to prove short-lived in the extreme, and we might therefore not need to worry about it as a reality. (That is why the Rajneeshis adopted their restrictive property covenant: they knew that non-Rajneeshis would soon move in otherwise.)
Third, I've conceded above that there is a modest role for non-entanglement in addition to equality, in analyzing the Establishment Clause, so we could, if we really wanted to, invalidate the prayer on those grounds rather than equality grounds.
But finally, I still believe that there is an equality problem here, and that this equality problem suffices to invalidate the prayer and is the most pertinent reason for invalidation. If the prayer is recited in public ceremonies and schools, it makes a statement: this is the preferred religion of our community, and other religions are dispreferred. This is a statement that no religious group should be permitted to make, on equality grounds. Even if the "other" is completely notional, such statements offend against the conception of a society based on equal worth. And of course the "other" is not notional: citizens of the town will know that those others are their fellow citizens in their state and nation. So it is a statement that derogates and demeans those others. This is no small matter. Ellory Schempp read from the Quran in a town that contained no Muslims. The school's policy required reading from the Bible. But Schempp, smart kid that he was, saw that you couldn't require something without forbidding something, and he proved right: the Quran was indeed off-limits in the homogeneous town. But if requiring is also forbidding or excluding, then it makes a statement to the children of Abington: Muslims are inferior, Christians are superior. Even if no Muslims live in Abington, that is a statement that is incompatible with democratic equality. We should instead be saying to our children, through public ceremonies and public schools, "You may live in a town with only Christians, but we ask you to remember that you live in a nation that contains many other religions, so we ask you to show your equal respect for your fellow democratic citizens by refusing to institutionalize Christian prayer in your schools." It's not just about offense to the actual feelings of Muslims, it's about the symbols of equality that we need to hold out to all in our society. The children of Abington need to learn respect for Muslims even more than the children of New York, and a firm policy of non-Establishment, interpreted as I have interpreted it, expresses that equal respect. Or so I believe.