The Court has moved the legislative power beyond the realm of mindful decision-making altogether.
When I saw the lineup of respondents to my Lemon piece, I thought to myself, “I guess this makes me the fifth Beatle.” Unsurprisingly, given their acumen on matters of church and state, each has something valuable to say about Lemon and its legacy. However, because space constraints prevent me from addressing all their comments, I will single out those that will allow me to clarify my initial remarks.
Andrew Koppelman writes that there is an inconsistency in my essay, that it seems that I am decrying a rigorous application of the Lemon Test while at the same time claiming that its prongs are endlessly pliable. Although I can see how one can read my comments that way, my point was to draw the reader’s attention to the pliability of the test by showing how both Lemon rigorism and Lemon accommodationism are not inconsistent with the Lemon Test. That’s why I also mentioned how its author, Justice Warren Burger, winds up in subsequent cases giving it an accommodationist interpretation or ignoring the test all together. In that sense, my observation aligns well with what Koppelman says about Lemon’s second prong: “it is incoherent without some specification of the baseline against which one judges the advancement or inhibition of religion.”
Although I agree with Koppelman that America’s commitment to religious neutrality has served it well and that this neutrality has over time (rightly) been applied more generously as the country has become more religiously diverse, I am much less sanguine about whether that neutrality can be sustained in a society in which illiberalism (on both the right and the left) is in ascendancy. Koppelman is surely correct that the “First Amendment treats religion as a good thing,” and that “religion’s goodness be understood at a high level of abstraction that the state takes no position on any live religious dispute.” But it seems to me that the number of our fellow citizens who agree with us on this is dwindling. To borrow from St. Paul (1 Cor 1:23): we preach religious neutrality, a stumbling block to the integralists and folly to the secular progressives.
On the other hand, if religion is indeed a good thing—as we suppose is speech, assembly, due process, and equal protection—it seems to me that religious neutrality must at least require a type of even handedness on the part of the state that allows its citizens to freely pursue the good of religion without placing on them special burdens not had by those pursuing parallel non-religious endeavors. On that, I suspect that Koppelman and I are in agreement, though I have no doubt we would quibble over the extent to which the state should accommodate religion in cases that involve ceremonial deism, those religious or quasi-religious government activities (e.g., legislative prayer, reciting Pledge of Allegiance) and structures (e.g., Christmas and 10 commandments displays) that reflect and celebrate the community’s cultural inheritance.
Mark David Hall offers a clear account of an originalist understanding of the Establishment Clause, and suggests, given the incoherencies of Lemon Test jurisprudence, that the Supreme Court would be wise to embrace originalism. What makes this view so attractive is not only that it is anchored in history, but also that it provides a list of concrete guidelines that give meaning to the First Amendment’s highly abstract language. The Lemon Test, on the other hand, just doubles down on the abstractions.
The other respondents (Mark Rienzi and Nick Reaves, and Ilya Shapiro) focus on the virtues of originalism as well, but with different emphases. Rienzi and Reaves argue that the Lemon Test presumes the normativity of a secular social order, as if the government’s support of a religious symbol or display could not in principle ever “be justified as an instance of benevolent neutrality between religion and non-religion.” Like Hall and Shapiro, they also offer a blueprint for what should replace the Lemon Test.
Shapiro stresses a Madisonian understanding of religious dis-establishment, arguing that the Lemon Test “distracts courts from a focus on whether a given government action compels nonbelievers or otherwise detracts from religious liberty.” For James Madison, given the many tyrannical ways that an established church has been employed throughout history by the state to compromise a citizen’s conscience, the disestablishment of religion serves the same end as the right to religious free exercise. Shapiro identifies this as the original public meaning of the Establishment Clause, though there were clearly those among the founding generation who thought that religious liberty was not per se inconsistent with an established church, as the Massachusetts Supreme Judicial Court argued in Barnes v. Falmouth (1810).
Although my sympathies lie with the originalism of Hall, Shapiro, and Rienzi and Reaves, I can easily imagine someone like Justice Clarence Thomas saying in response to them: not originalist enough! As he has written in several opinions, the doctrine of incorporation—the hermeneutical move by which the Court applies the Bill of Rights to the states by way of the 14th amendment’s liberty clause—seems inapt when it comes to the Establishment Clause. For that provision is not expressing an individual right (as in the cases of religious free exercise and freedom of speech), but rather, it is a prohibition on congressional power to either establish a federal religion or to prevent a state from establishing one. Justice Thomas argues that because no individual right is protected by the Establishment Clause under its original meaning, there is literally no right for the Court to incorporate and apply to the states via the 14th amendment. Although I do not know how far Hall, Shapiro, and Rienzi and Reaves are willing to go in heeding Thomas’ call to make originalism great again, it is worth pointing out, as I noted in my essay, that the precedential basis for Establishment Clause incorporation is remarkably weak: a citation in Everson v. the Board of Education (1947) to dictum in a Free Exercise Clause case (Murdock v. Pennsylvania ), and no actual argument.