Church, State, and the Crisis in American Secularism

4 Proposals That Have Failed to Resolve the Establishment Clause Crisis

72 I wrote in the last chapter that the Supreme Court’s job is to state the obvious . In the context of church and state, this means giving a principled account of the meaning of the Establishment Clause. The Court’s job is to determine what the Establishment Clause means so the people may ultimatelyrendertheirownjudgment.Thisistheonlywaythecrisisover the meaning of the Establishment Clause can be resolved. “Principled” here does not necessarily exclude a pragmatic account, such as that of Justice Breyer. We saw in chapter 2 Justice Breyer’s attempttomakenon -divisivenessthetouchstoneofEstablishmentClause analysis in his concurrence in Van Orden. Non-divisiveness is certainly an admirable goal. However, the trouble with Justice Breyer’s kind of pragmatism is that it does not work. An interpretation stating, in effect, that government may utilize religious symbols if there are no protests will obviously lead to more protests. What are the possible interpretations of the Establishment Clause? The most obvious possibility for resolving the crisis in Establishment Clause interpretation is for the justices to reaffirm the neutrality principle and to enforce it consistently. This course would return the Court to the original impetus of Everson, Engel, and Schempp and would continue to move us in the direction of a secular society. In theory that would mean the words “under God” would be removed from the Pledge of Allegiance, at least in its official versions, and new religious public f o u r Proposals That Have Failed to Resolve the Establishment Clause Crisis Proposals that Have Failed 73 monuments would be barred at some point. This course would close the gap between what we say and what we do. Admittedly,areinvigorationofgovernmentneutralitydoesnotseem very likely today given the balance of political pressures in the country and the trends on the Court. The Democratic Party has attempted to make itself more faith-friendly since the 2006 elections. President Obama reinforced that trend while running for president in 2008. In addition, his first appointment to the Supreme Court, Justice Sonia Sotomayor , had not shown any sign of a strong neutrality position prior to her appointment. Of course, that does not necessarily mean much once a nominee actually joins the Court. But one can at least say that Justice Sotomayor was not picked because of her reputation for a strict separation position. Nor do decisions from the Court show any signs of moving toward enforcingneutrality.TheCourt’smostrecentdecisions—upholdingpublic school vouchers, ducking a challenge to the Pledge of Allegiance, first splitting on the issue of public Ten Commandments displays and then later upholding one—certainly do not augur a renaissance of neutrality. In terms of personnel on the Court, there is also no reason to anticipate a renewed commitment to government neutrality. Justice Souter, whose seat Justice Sotomayor now assumes, was probably the second mostpro-neutralityjusticeontheCourt.JusticeStevens,whoisretiring, has been the most pro-neutrality justice. Thus even if Justice Sotomayor turns out to be as pro-neutrality as had been Justice Souter, which is by no means certain, with Justice Stevens’s retirement, the Court would be more likely to shift away from neutrality, rather than toward it. Of course, predictions like these are never certain. Neutrality could stageacomeback.AlthoughChiefJusticeJohnRobertsandJusticeSamuel Alito are regarded among many law professors as pro-religion in the Establishment Clause context,1 that does not necessarily mean they are. Justice Alito did write the Pleasant Grove City opinion allowing a Ten Commandments display, which Chief Justice Roberts joined, but that caseisnotdirectlyonpoint,sinceitwastechnicallyafreespeechcase.In addition,JusticeSotomayormightturnouttobestronglypro-neutrality, as perhaps was indicated by her decision to join Justice Stevens’s dissent 74 The Establishment Clause Crisis in Salazar v. Buono, the cross-in-the-desert case that will be discussed in chapter 6. Future nominees by President Obama might also be pro-neutrality. The reason the current pro-religion case law is not really settled is that there has been no accepted substitute for neutrality as an overall interpretation of the Establishment Clause. Thus the case law is actually just at equipoise and could easily move in one direction or another. President Obama’s first nominee for a Court of Appeals position was District Judge David Hamilton, who had once strongly suggested in an opinion that Justice Brennan had been right in his Marsh dissent that legislative prayer is unconstitutional.2 It is possible that this is President Obama’s position as well, that he is a closet separationist whose future judicial nominees will reopen the debate over the...