The following style of argument has on occasion found favor with courts. The state has an interest in appearing not to violate the Establishment Clause, even if it actually is not violating the Establishment Clause. And it appears to violate the Establishment Clause when it accommodates a religious group or organization — whether on equal terms with non-religious groups or not. For example, in the Second Circuit’s Bronx Household of Faith case (whose fate is still working itself out in the Southern District of New York), the Court said this: “In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause.” Not only endorsement, but a “strong basis” for “concern” that there is endorsement — that is, the appearance of an endorsement — is constitutionally relevant. I have not been able to locate the phrase, “appearance of endorsement” in Justice O’Connor’s statements of her test, though I did find that precise language in Justice Souter’s concurrence in Capitol Square Review and Advisory Bd. v. Pinette.
I think the argument is utterly bogus. But I feel that way about many Establishment Clause standards and arguments. What makes this one particularly — uniquely — wrongheaded is its backhanded puffing up of the reach of the Establishment Clause without actually bothering so to rule.
Who is assessing appearances? From what vantage point? The same person who is assessing reality? May not appearances be deceiving? If something appears to violate the Establishment Clause, does that imply that it actually does not violate the Establishment Clause? And if something does not violate the Establishment Clause, why in Heaven’s name should we care at all — from a constitutional point of view, as opposed to a political one — that it appears to do so? Or is the appearance of violating the Establishment Clause a suggestion that something may violate the Establishment Clause, but we are unprepared to say so? When would we be prepared to say so? When it actually does violate the Establishment Clause? But shouldn’t we only say so then?
But ridiculous as all of that is, it’s not really what I find supremely irritating about the argument from appearances. What really rubs me wrong is that by using the language of appearances or reasonable “concern,” courts are able to give constitutional weight to practices that have nothing to do with the Establishment Clause. They can tacitly expand the reach of the Establishment Clause without actually so ruling. They can say, for example: “Accommodating a religious group may or may not be constitutional under the Establishment Clause; we’re not saying. But whether or not such an accommodation is constitutional, the state’s failure to grant an accommodation vindicates a non-establishment value — to wit: avoiding the appearance of an establishment.” Instead of saying honestly that the Establishment Clause says absolutely nothing about the refusal to accommodate X, that refusal is itself constitutionalized through the back door of the Establishment Clause. You may be too weak politically to get yourself an accommodation — you may not know the right people or your claims just may not have traction in the political climate of the day — but it adds needless insult to injury to be told by a court that the political rejection of your accommodation actually has a basis in the Constitution. It doesn’t. And saying that it does bloats the Establishment Clause; it expands its waistline with the empty calories of what “appears” to be unconstitutional but really isn’t. That is no way to interpret the Constitution.
There is a final reason that I think the appearances argument is obnoxious: it rewards the government that declines to accommodate religious objectors by sanctioning its action as a constitutional matter, and in so doing it insidiously suggests that it is part of our constitutional tradition to be intolerant of religious difference. Many people see the holding of Employment Division v. Smith in different ways: some think it wise, while others do not. But most agree that Smith was not intended to discourage legislatures from accommodating religious objectors. It was intended to place primary responsibility for such accommodations in legislative hands — to de-constitutionalize the issue of exemptions from neutral and generally applicable laws.
The Establishment Clause appearances argument alters that framework. It re-constitutionalizes the exemption issue. Failures to accommodate are no longer purely political matters. They are supported by constitutional reasons. In combination with Smith, the EC argument from appearances suggests that it’s a very good thing, constitutionally, when legislatures are intolerant of religious difference, because accommodating people for religious reasons gives the appearance of violating the Constitution, even if — in reality — it does nothing of the kind.