Justice Thomas’s Concurrence in Town of Greece

One last expository post on Town of Greece v. Galloway, this one on Justice Thomas’s concurrence, which was joined by Justice Scalia as to Part II alone. There has already been a fair quantity of commentary on the case, but little of it has focused on Justice Thomas’s concurrence.

The Thomas concurrence is divided into two sections. The first part restates and develops Justice Thomas’s view, first expressed in Elk Grove Unified School District v. Newdow, that the Establishment Clause should not be incorporated against the states because the Establishment Clause represents a protection for the states against interference by the federal government in matters of religion. Like the Tenth Amendment, the Establishment Clause is not a protection for individual rights. The clause’s incorporation was simply assumed, wrongly and without argument, in the Everson case.

Some discomfited attention is being paid to Justice Thomas’s statement that “[a]s an initial matter, the Clause probably prohibits Congress from establishing a national religion.” How could he only say “probably”? But there is an explanation. The citation for this statement is the excellent book, Church, State, and Original Intent, by religious historian (and Center for Law and Religion board member and former Forum guest) Donald Drakeman. Here is Don at 260 of the book:

The strongest evidence from the constitutional ratifying conventions, the amendment proposals, the records of the congressional debates, and the ratification of the Bill of Rights points consistently in one direction: that Congress should be prohibited from establishing a “national religion.” The First Amendment thus succeeded in turning the hotly contested subject of church-state relations–which had already caused legislative battles in the states and would continue to do so virtually in perpetuity–into a “milk and water” amendment by focusing on the one thing no one wanted and everyone could unite against: a “Church of the United States.” There was no need for the various participants to agree on what that meant, and, indeed, interpretive disagreements arose as early as the first few decades, but, for this review of the understanding of the clause at the time it was adopted, there is no body of evidence that supports any more detailed sense of what the language meant to the people who voted for it or to the American public who received it.

There is therefore enormous uncertainty as to what the clause meant as an original matter (this is one reason that original expected applications originalism is so useful as to the Establishment Clause)–uncertainty that is reflected in the very spare historical record that reveals next to nothing about the clause’s historical meaning. Church-state arrangements in the early republic were, as they are now, deeply unsettled and contested, and the Establishment Clause was not intended to settle them. If the clause is read as Justice Thomas reads it–as a federalism provision–then one must make the inference (and it is an inference) that a national church was prohibited, since a national church would present a major obstacle to the freedom of states to decide on their own church-state arrangements. 

Part II of the concurrence assumes that the clause had been incorporated and then argues that what the clause proscribes is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Note that here there is a kind of unity with Justice Scalia’s view of the scope of protection afforded by the Free Exercise Clause. This “actual legal coercion” test–which the Justices distinguish from a “subtle coercive pressures” test (see Lee v. Weisman) involves the exercise of government power “in order to exact financial support of the church, compel religious observance, or control religious doctrine.” It is therefore unsurprising that Justice Thomas and Justice Scalia did not join Part II(B) of Justice Kennedy’s opinion dealing with the type of coercion required to make out an Establishment Clause challenge (assuming its incorporation against the states).

CLR Podcast on Town of Greece v. Galloway

Mark and I have recorded a podcast discussing Town of Greece v. Galloway, the legislative prayer case just argued at the Supreme Court, in the Center’s first in a planned series of podcasts on law and religion cases and issues.

We tried to be fairly complete in our discussion of the case, and I think this podcast is particularly useful for students and others interested in an introduction to the issue of legislative prayer and in some fairly detailed analysis of and commentary about the oral argument.

The Becket Fund’s Cert Petition in the Wisconsin High School Graduation Case

Last summer, the Seventh Circuit ruled, en banc, that a Wisconsin public high school could not hold its graduation ceremonies in a rented Evangelical church sanctuary. To do so, the court ruled, posed too great a risk of government coercion, proselytism, and endorsement of religion. Three judges–Easterbrook, Posner, and Ripple–filed blistering dissents, the sort that often result in Supreme Court review.

The Becket Fund has filed a cert petition on behalf of the high school; Stanford Law Professor Michael McConnell appears on the petition as counsel of record. You can read the petition here. The Supreme Court is expected to announce whether it will hear the case, Doe v. Elmbrook School District, later this month. The case would give the Court an opportunity to clarify (or discard) its much maligned endorsement test. For my reflections on the issues the case raises, please click here.

Ahdar on Regulating Religious Coercion

Rex Ahdar  (U. of Otago, NZ) has posted Regulating Religious Coercion. The abstract follows (NB: article is behind a paywall).

This Article examines the nature and regulation of religious coercion. Direct religious coercion denotes situations where the government expressly applies sanctions to ensure conformity with religious goals. Indirect religious coercion describes situations where, although the state may not have intended to pressure citizens to comply with or participate in some religious activity, it nonetheless takes advantage of social, psychological or peer pressure that has the same conformity-inducing effect. Indirect religious coercion is a real problem for those who dissent from majoritarian religious practices. But an open-ended inquiry into it can, as critics point out, be a highly unpredictable and subjective exercise. On balance, the Article concludes that the concept does deserve recognition by the courts. The Article develops a modified indirect coercion test to guide judges in First Amendment cases. A two-step test is expounded to streamline the inquiry, identify the key criteria, and render the test more workable.

Yesterday’s High School Graduation Ruling: Three Quick Observations

As Marc notes below, the Seventh Circuit handed down what could be a major Establishment Clause case yesterday, Doe v. Elmbrook School District. The case involves a Wisconsin school district’s decision to hold public high school graduation ceremonies inside an Evangelical church sanctuary. Relying on three different tests found in the Supreme Court’s Establishment Clause jurisprudence — the endorsement test of cases like McCreary, the coercion test of Lee and Santa Fe, and the no-proselytism test of Stone v. Graham — the Seventh Circuit ruled, en banc, that the ceremonies violated the Constitution. Here’s a good summation of the reasoning from the decision itself: “An unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbook Church.” 

The case contains three strong dissents, including a not-very-thinly disguised cert petition by Judge Ripple and two quote-worthy excoriations of the Supreme Court’s Establishment Clause jurisprudence by Judges Easterbrook and Posner.  I’m not sure the Court will actually grant cert, and if it does, I’d have to guess that Justice Kennedy, frequently the swing vote in Establishment Clause cases, would agree with the Seventh Circuit’s reasoning about coercion, anyway. But there’s a lot in the case to think about. I’d like to make just three quick observations here:

• Neutrality: the case makes clear that “neutrality,” both among religions and between religion and non-religion, remains the “touchstone” of Establishment Clause jurisprudence. In theory, the Supreme Court’s Continue reading

Wright on the Coercion Test and Establishment Clause Cases

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Why a Coercion Test is of No Value in Establishment Clause Cases.  The abstract follows.

Courts have increasingly referred to some sort of ‘coercion’ test in resolving Establishment Clause cases. This is not surprising, given the references to coercion in other areas of the law, and the serious criticism received by other, familiar Establishment Clause tests. As it turns out, though, the literature of the social sciences and humanities, and of philosophy especially, show, initially, the discouraging complexity of trying to rely on any form of coercion test in the Establishment Clause cases.

The crucial problem, however, is not precisely one of the complexity, in this context, of the idea of coercion. Rather, the idea of coercion turns out to be remarkably unclear, open, and in various ways crucially undeveloped and incomplete. Continue reading

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