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Gillman and Chemerinsky’s Masonic Religion Clauses

In 1948, Justice Stanley Reed pithily proposed that a “[r]ule of law should not be drawn from a figure of speech.” Justice Reed was referring to President Thomas Jefferson’s reference, in an 1802 piece of constituent-service correspondence, to the “wall of separation between church and State” supposedly built by “the whole American people” when the First Amendment to the Constitution was ratified.

Chancellor Howard Gillman and Dean Erwin Chemerinsky insist, in The Religion Clauses, that “Thomas Jefferson got it right” and that “the First Amendment was meant to create a wall that separates church and state.” The better view, though, was expressed in 1985, by then-Justice William Rehnquist, who warned that “[i]t is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.”

Reed and Rehnquist were right, and—as many scholars have shown—the constitutionalization of Jefferson’s “Letter to the Danbury Baptists” was a judicial blunder, which owes more to Justice Hugo Black’s hobby-horses and law-office history than to sound interpretation or prudence. And yet, images and invocations of masonry have long been staples of both commentary on the First Amendment’s religion-related provisions and the Supreme Court’s cases interpreting and applying them. When the Court’s high-profile cases are announced each June, it is earnestly, if inaccurately, reported that the “wall of separation” is crumbling, lowering, collapsing, eroding, losing bricks, and so on.

To be sure, “the case for separating church and state” is a strong one. The First Amendment’s prohibition of religious establishments and its protection for the free exercise of religion, correctly understood, work together to safeguard religious freedom. And, both religious freedom and good government are well served by an appropriate differentiation, or distinction, between religious and political authority: The bishop should not set the speed limits and the governor should not compose the creed. The “distinction between what belongs to Caesar and what belongs to God” is, as Pope Emeritus Benedict XVI once observed, “fundamental.”

Gillman and Chemerinsky, though, make a “case” for something quite different—not for a healthy and pluralistic secularity but for an ahistorical and unattractive secularism. They repeatedly state that “government should be secular.” But this is an unremarkable claim – yes, it should be. What is remarkable – and radical, when compared with our practices and judicial precedents – is their understanding of this claim’s implications for civil society, for the workplace, for schools, for religious institutions’ self-governance, etc.

The authors remind us, early and repeatedly, that they “are not originalists and do not believe that the meaning of a constitutional provision is determined by the original understanding at the time it was adopted.” Fair enough. But this disavowal sits uneasily with their keystone chapter, “The Concerns of the Founders”, which—after a quick tour through bits of John Locke, Roger Williams, James Madison, and Jefferson’s letter—implausibly asserts that “there was a consensus among the majority of those who drafted and ratified the Constitution” in support of church-state separation as the authors understand it. There was not. The authors’ preferred arrangement of politics, religion, church, state, law, and culture is certainly one that many prominent thinkers have endorsed, but it has no significant connection with or roots in America’s founding, history, tradition, or practice. There is no basis for the view that the decades of strict-separationism in the Supreme Court or the litigation agenda of the Freedom from Religion Foundation has much to do with a founding-era “consensus.”

There is an apodictic, impressionistic, pronouncement-from-Olympus quality to a lot of the authors’ “applications.”

The heart of The Religion Clauses are two chapters, “The Establishment Clause: In Defense of Separating Church and State” and “The Free Exercise Clause: Guarding Against Religious Animus but Defending Neutral Laws of General Applicability.” Each chapter sketches “competing theories” of these clauses’ meaning, describes several lines of relevant Supreme Court decisions, and then evaluates those cases through “applications” of the theories they prefer.

The various descriptions of cases are accessible and generally accurate, although the “Aid to Religious Institutions” section does not mention the Court’s landmark 2002 ruling in Zelman v. Simmons-Harris, in which the justices upheld a school-choice program that included parochial schools. It does discuss at length the recent decisions in Locke v. Davey, Trinity Lutheran Church v. Comer, and Espinoza v. Montana Department of Revenue, but these cases were not—to the authors’ regret, no doubt—about whether the Establishment Clause permitted the aid in question; the justices assumed that it did.  Instead, the questions presented in these cases had to do with the the Free Exercise Clause’s prohibition on anti-religious discrimination.  Similarly misplaced is the treatment in the “Free Exercise Clause” chapter of the Court’s cases interpreting and applying federal statutes that protect religious exercise.

These chapters deal with the selected material in journalistic depth, and there is nothing in the authors’ descriptions or evaluations of the cases that will be new to lawyers, scholars, or citizens familiar with this area of law. The “wall” metaphor is pressed into the demanding service, and the nutshell version of the narrative is that the Court’s shift, in cases involving public religious symbols and cooperation between governments and religious schools, from strict-separation to neutrality is regrettable, as are laws and court rulings that accommodate religious believers by exempting them from rules that burden their religious commitments and exercise.

There is an apodictic, impressionistic, pronouncement-from-Olympus quality to a lot of the authors’ “applications.” They acknowledge, in several places, that “line-drawing may sometimes be difficult”, but it is often not clear exactly why they think the line should be drawn here rather than there. The proposed standard is that “[t]he Establishment Clause should be interpreted, to the greatest extent practical, to require separation of church and state”, but—putting aside questions about the authors’ understanding of church-state separation—it is not disclosed how “practical” secularization methods differ from impractical ones. It is pronounced—three times in three pages—that “religious symbols do not belong on public property,” but it is not explained why, say, all of the crosses at Arlington National Cemetery should not be bulldozed or why the cities of Sacramento, Corpus Christi, and Las Cruces should not be required to change their names.

Another frustratingly slippery aspect of the authors’ argument has to do with the right of religious communities to decide religious questions for themselves. The authors “insist that the government allow religious institutions to organize their own affairs to the largest extent possible”, but their understanding of “possible” departs glaringly from the Supreme Court’s. The Court’s 9-0 ruling in Hosanna-Tabor v. EEOC, which affirmed that both the Establishment and Free Exercise Clause prevent the government from second-guessing a religious institution’s decisions about who will, and who will not, serve as teachers, ministers, and leaders is treated in a footnote.  Probably no Court decision in decades so obviously implicates the principle of church-state separation, correctly understood.  It seems clear, then, that Gillman and Chemerinsky’s understanding of what it means for a religious institution to “organize [its own affairs] to the largest extent possible” does not extend to, say, allowing a Catholic parochial school to decide who will, and who will not, teach children in the faith.

A Court decision that might be seen as one of the most foundational religious-freedom cases in American history—Pierce v. Society of Sisters—is not mentioned, even though it contains some of the most “separationist” (properly understood) language in any judicial opinions. In that case, the Court invalidated an anti-Catholic, Klan-backed Oregon law that purported to require all children to attend government-operated schools. One might think that if church-state separation means anything, it means that the “state” does not assert and enforce a monopoly on the education and formation of children. In a 2015 book chapter, though, Dean Chemerinsky argued that, notwithstanding Pierce, all children should be required to attend the government’s schools.  This would be statism, not separation.

It is wise to distinguish between political and ecclesiastical authorities and their domains, and this distinction is consistent with our constitutional text and traditions. But our constitutional text and tradition of religious freedom fail to support a “religion blind” approach to the exemptions question, a “naked public square” stance with respect to religious symbols and expression, and a rigid no-cooperation position with respect to religious schools. Instead, the American experiment in religious freedom for all has respected the rights of citizens to live integrated lives, to carry their commitments with them in civil society, and to form and participate in authentic communities of faith.  And our law has appreciated and affirmed that cooperation between these communities and secular governments is entirely consistent with an appropriate distinction between church and state.