Rather than continuing to apply the Lemon Test the Court should rely on an accurate account of the founders’ understanding of the Establishment Clause.
Hovering like a stern schoolmarm over much of our political discourse and decision-making is a sort of lurking censor, monitoring political decisions to ensure that they are based on “secular” grounds and purposes. Let us call this regulator “the secularism constraint.”
In many cultural neighborhoods, the secularism constraint seems almost as natural and ineluctable as the law of gravity. Legal scholars and political theorists argue for one or another variant of the constraint (a/k/a “public reason”), or more often just take it for granted. Constitutional doctrine– the so-called Lemon test, from the case of Lemon v. Kurtzman (1971)– provides at least ambiguous validation with its “secular purpose” requirement for government action.
Surrounding the secularism constraint there have of course been massive, intricate, finely shaded academic debates. Although I have sometimes joined in those debates, in this forum I want instead to be simple and blunt. More specifically, I want to make two claims. First, the secularism constraint is exclusionary: it truncates public discourse in a way that works to preclude many citizens from full civic participation. Second, there is no cogent justification for the secularism constrain—not in the Constitution, not in our evolving constitutional traditions, not in the ethics or ethos of pluralist democracy. We would do well, consequently, to recognize the secularism constraint for the imposition it is, and to repudiate it.
Start with the first claim. The exclusionary force of the constraint is perhaps most conspicuous in the occasional case—like some of the same-sex marriage cases–in which judges find that a law was enacted on the basis of rationales that are deemed “religious,” and hence not “secular,” and hence not admissible; and so the judges proceed to invalidate the law for lack of a legitimate rational basis. But the constraint is probably more powerful, even if mostly invisible, in various other public controversies in which competent advocates instinctively frame their arguments in “secular” terms so as not to transgress the constraint.
On just about any major issue that Americans care about, many citizens form their views based in part on considerations that would be judged “religious.” (Whatever that means: such judgments are often confidently dispensed by people who appear to have only the most tenuous conception of the actual beliefs and practices to which the term is applied.) But astute advocates understand that these reasons would be deemed out of place in the context of public decision-making or litigation. Presenting such reasons would harm an advocate’s cause, not help it. And so of course these reasons are neglected, or suppressed, or concealed underneath some ill-fitting secular cover.
So then, is there any justification for this exclusionary constraint?
Before we try to answer, I’m afraid the question needs to be refined just a bit. Through much of Western history, it was widely accepted that earthly governments should be “secular” in the sense that their jurisdiction was limited to the “temporal” affairs of this life and this world (as opposed to matters of eternity). In that classical sense, the limitation of government to the realm of the “secular” remains uncontroversial: nobody today thinks government should prohibit abortion or same-sex marriage for the purpose of getting recalcitrant souls into heaven. (For a more complete discussion, see here.) In its classical sense, though, “secular” emphatically did not mean “not religious.” The class of “secular clergy,” for example, did not encompass priests who had lost their religion, but rather priests who carried out their religious vocation in the world, in a parish, as contrasted with the “regular clergy” who retreated from the world to the rule (or “regula”) of a monastery. Somewhere in early modernity, however, the meaning of the term began to shift, so that today the primary meaning of “secular” for most people is simply “not religious.” And so the relevant question for us is this: is there any justification for a secularism constraint in the contemporary sense of “secular” as “not religious”?
To be shamelessly unsubtle, I think the answer to that question is, quite clearly and simply, “no.”
The Constitution nowhere says that American governments or public discourse must be secular. Nor did the First Amendment’s framers seem to think they had enacted any such requirement as they proceeded to appoint legislative chaplains and approve a national day of prayer. To be sure, some nations’ constitutions– India’s, for example– do explicitly specify that government is supposed to be secular (although in India “secular” doesn’t seem to mean anything like what it means here, as I was repeatedly told at a conference in India a couple of years ago). The American Constitution, by contrast, doesn’t say that. If you don’t believe me, read it and see for yourself. In the latter half of the nineteenth century there was an energetic movement to add an amendment that would have so specified. The movement failed. Americans evidently understood that their Constitution contained no such provision, and they didn’t want one.
It is true that the framers declined to include any acknowledgment of deity in the Constitution, as some citizens wanted, and as state constitutions typically did. From this deliberate omission, some scholars and advocates deduce that ours is a “godless” Constitution. A better term would be “agnostic.” And this calculated agnosticism at the constitutional level was indeed an important part of the American strategy for dealing with pluralism. But to conclude from the Constitution’s agnosticism that the Constitution requires American governments and public discourse to be secular is simply a brazen non sequitur– and one that, as I have argued elsewhere, frustrates rather than furthers the constitutional strategy. If the framers had intended any such consequence, they could have said so. They didn’t.
Of course not everybody cares much about text and original meaning. The content of our constitutional law can evolve, some think, along with our political and constitutional traditions. This view is contested, obviously, but for the moment let’s go with it. The problem is that except within the judiciary and the academy (and perhaps the constituency of the New York Times), our traditions do not seem to have evolved toward excluding religion from public discourse.
Thus, from Washington through Jefferson through Lincoln through FDR through Reagan through Obama, Presidents have invoked religion in their inaugurations and public speeches. Religion figured prominently in the Civil Rights Movement, led by the Reverend Dr. Martin Luther King, Jr. When just over a decade ago the Ninth Circuit invalidated the words “under God” in the Pledge of Allegiance as recited in public school classrooms, a virtually unanimous outcry of protest arose throughout the country, from the White House to the Congress to the press: the fact that some of this protest was probably more politically strategic than sincere merely underscores the secularism constraint’s perceived lack of appeal in our broader political culture.
The difficulty of squaring the secularism constraint with our constitutional tradition is embarrassingly on display in John Rawls’s sincere but almost laughably inadequate efforts to excuse Lincoln’s majestic but profoundly theological Second Inaugural Address (“With malice toward none, with charity for all . . .”). Rawls offered two reasons why Lincoln’s speech, which he aptly described as offering a “prophetic (Old Testament) interpretation of the Civil War as God’s punishment for the sin of slavery,” was permissible. First, Rawls asserted that the speech had “no implications bearing on constitutional essentials or matters of basic justice.” Really? The reconstitution of the Republic had “no implications bearing on constitutional essentials”? Slavery and emancipation were not “matters of basic justice”?
Rawls’s second reason suggested that the speech was permissible because similar ideas could have been conveyed without the speech’s pervasive theological content. Well, . . . maybe. But imagine how that secularly sanitized speech would have gone. “My fellow Americans, slavery was admittedly a profoundly unjust institution. Still, there’s no point now in casting blame; let’s all be grownups and move forward, together.” Purged of its religious dimension, the address simply would not have been the speech for which Lincoln is revered, and which a London newspaper described as “the noblest political document known to history.”
Quick qualification: Rawls suggested that Lincoln’s address was probably permissible “in his day,” but it might not be okay “in ours.” The talk is still there, though, solemnly inscribed in distinct letters on the wall of the Lincoln Memorial. Should we get out the sandblasters? Or can we leave the address there as a sort of historical artifact, so long as everybody understands that the government isn’t saying this—and couldn’t say it—today?
But set aside constitutional text and tradition. An often expressed view is that our nation is more pluralistic than it once was, and that in a pluralistic democracy in which people differ in their religious faiths (or lack thereof) and their conceptions of the good life, considerations of legitimacy or mutual respect or democratic deliberation mean that we should make public decisions on the basis of reasons that everybody shares. On reasons within the realm of “overlapping consensus,” as Rawls put it.
This is surely an appealing aspiration, one to be honored where possible. Indeed, any sensible advocate or politician already has every incentive to appeal to reasons that everyone shares, if such reasons exist. The problem arises with respect to contentious issues where there plainly is no consensus either about outcomes or about permissible reasons or considerations. When that sort of impasse occurs, proponents of a secularism constraint are forced to secure an artificial “overlapping consensus” by narrowing or gerrymandering the relevant community of discourse, excluding from that community citizens whose views or “comprehensive doctrines” are deemed “unreasonable.” So, yes, the community of public discourse can be said to share an overlapping consensus: that is because everybody who declines join in that “consensus” is pro tanto defined out of the community. And thus a project that began with announced inclusionary intentions becomes overtly and aggressively exclusionary.
It would be better, I think, just to say that citizens and politicians are free to argue and vote and make decisions on the basis of any reasons that seem to them believable and relevant–secular, religious, whatever. Probably not all that much would change. People would still have powerful incentives, sounding in courtesy but also in simple prudence, to present their views in as broadly acceptable terms as they can. “Sectarian” outliers could pontificate and fulminate (as they can now), but they would thereby gain very little political traction.
Without the secularism constraint, in short, our public discourse would still be significantly “secular.” But it would be less artificial, more free and open, more honest, and less exclusionary.