Religion, division, and the first amendment

Georgetown Law Journal

Volumn 94, Issue 6, 2006, Pages 1667-1724

  Garnett, Richard W ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 33749831876     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (403)

1. GANGS OF NEW YORK (Miramax Film Corp. 2002).
2. 403 U.S. 602, 622 (1971).
3. Id. at 622, 623.
4. Id. at 622.
5. See, e.g., Michael W. McConnell, Why Is Religious Liberty the "First Freedom"?, 21 CARDOZO L. REV. 1243, 1249 (2000)
6. (discussing and citing THOMAS HOBBES, LEVIATHAN, pt. III, chs. 42, 43 (C.B. Macpherson ed., 1968) (1651)) ("The great end of government, for Hobbes, is to prevent civil disorder.").
7. Van Orden v. Perry, 125 S. Ct. 2854, 2868 (2005) (Breyer, J., concurring).
8. Id. at 2871.
9. Id. at 2875 (Stevens, J., dissenting) (emphasis added).
10. NOAH FELDMAN, DIVIDED BY GOD: AMERICA'S CHURCH-STATE PROBLEM - AND WHAT WE SHOULD DO ABOUT IT (2005).
11. Id. at 251. Feldman suggests, intriguingly, that "[p]erhaps . . . it might be said that God has divided us, by virtue of the profound religious diversity that we have long had and that is daily expanding. Since Madison, this diversity has often been called a blessing and a source of strength or balance, yet it also remains, as it always has been, a fundamental challenge to the project of self-government."
12. Jay Tolson, Divided, We Stand: America's Long Struggle to Balance Church and State Isn't Getting Any Easier, U.S. NEWS & WORLD REP., Aug. 8, 2005, at 42.
13. Lemon v. Kurtzman, 403 U.S. 602, 623 (1971).
14. Zelman v. Simmons-Harris, 536 U.S. 639, 724 (2002) (Breyer, J., dissenting).
15. See Steven D. Smith, Believing Persons, Personal Believings: The Neglected Center of the First Amendment, 2002 U. ILL. L. REV. 1233, 1239 n.19 (noting the "underlying unity among constitutional commitments to free expression, free exercise, and non-establishment" and that "[t]hough often treated as independent or even conflicting, these commitments have a common textual source and a common early history, so it would be helpful to have an account that captures their common themes") (citing Prince v. Massachusetts, 321 U.S. 158, 164-65 (1944) ("[T]he great liberties insured by the First Article . . . are interwoven . . . . [T]hey have unity in the charter's prime place because they have unity in their human sources and functionings.")).
16. JOHN COURTNEY MURRAY, WE HOLD THESE TRUTHS: CATHOLIC REFLECTIONS ON THE AMERICAN PROPOSITION 38 (Rowman & Littlefield Publishers 2005) (1960).
17. However, Justice Breyer's recent concurring - and controlling - opinion in Van Orden might suggest that this is changing. See supra notes 6-7 and accompanying text.
18. MURRAY, supra note 15, at 43.
19. Id. at 59.
20. See, e.g., JOHN WITTE, JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 46-48 (2d ed. 2005) (discussing the role of "religious pluralism" in the thinking of the Founding generation); McConnell, supra note 5, at 1254 ("The structure of American democracy was based on pluralism and diversity - the balance of power among sects and factions - rather than on a contrived homogeneity." (citing THE FEDERALIST No. 10 (James Madison))).
21. See, e.g., CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 213 (2003) (contending that "[w]ell-functioning societies [should] take steps to discourage conformity and to promote dissent");
22. Christopher Hitchens, Bring on the Mud, WILSON Q., Autumn 2004, at 44, 46 ("By definition, politics is, or ought to be, division. It expresses, or at least reflects, or at the very least emulates, the inevitable difference of worldview that originates, for modern purposes, with Edmund Burke and Thomas Paine.");
23. Jonathan Rauch, Bipolar Disorder, ATLANTIC MONTHLY, Jan./Feb. 2005, at 110 ("Politically speaking, our fifty-fifty America is a divisive, rancorous place. The rest of the world should be so lucky.");
24. Andrew Sullivan, Federal Express, NEW REPUBLIC, Dec. 13, 2004, at 6 ("[C]ultural polarization is emphatically not a problem. It's a sign of political health, a bellwether of a society that has not given up on debating first-principle issues of human morality."). Professor Smith put the matter well: It is arguable . . . that pluralism . . . has been the usual condition of Western peoples and that the normal and natural response to pluralism is not to shun contested foundational truths but to strive with even greater care and energy to figure out what those truths are.
25. Steven D. Smith, The Pluralist Predicament: Contemporary Theorizing in the Law of Religious Freedom, 10 LEGAL THEORY 51, 57 (2004).
26. Texas v. Johnson, 491 U.S. 397, 408-09 (1989) (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)).
27. 13 OXFORD ENGLISH DICTIONARY 568 (2d ed. 1989);
28. JOHN AYTO, DICTIONARY OF WORD ORIGINS 438 (1991). The Middle French derivative is relier, "to connect, fasten together."
29. A. REY, DICTIONNAIRE HISTORIQUE DE LA LANGUE FRANÇAISE 2017-18, 3161 (2000).
30. Lemon v. Kurtzman, 403 U.S. 602, 623 (1971).
31. See, e.g., FREDERICK MARK GEDICKS, THE RHETORIC OF CHURCH AND STATE: A CRITICAL ANALYSIS OF RELIGION CLAUSE JURISPRUDENCE 12 (1995) (describing the "secular individualist" view in which religion is regarded as "an irrational and regressive antisocial force that must be strictly confined to private life in order to avoid social division, violence, and anarchy");
32. Steven G. Gey, Unity of the Graveyard and the Attack on Constitutional Secularism, 2004 BYU L. REV. 1005, 1011, 1013 (2004) ("Religion is by its very nature exclusionary, which means that religion is incapable of producing . . . unity . . . . [P]olitical unity . . . is actually antithetical to religion's entire reason for existing." (emphasis added));
33. William P. Marshall, The Other Side of Religion, 44 HASTINGS L.J. 843, 854 (1993) (referring to the "'dark side' of religion and religious belief - the side of religion that is inherently intolerant and persecutory");
34. Stanley Fish, Why We Can't All Just Get Along, FIRST THINGS, Feb. 1996, at 18 ("[A] person of religious conviction should not want to enter the marketplace of ideas but to shut it down . . . ."); see also Luke 12:51 (Douay-Rheims) ("Think ye, that I am come to give peace on earth? I tell you, no; but separation.");
35. cf., e.g., Alan E. Brownstein, Justifying Free Exercise Rights, 1 U. ST. THOMAS L.J. 504, 539 (2003) ("Religion is exclusionary. It doesn't have to be, but it often is.");
36. John C. Danforth, Leaders Can Find Unity in What Divides Us, ST. LOUIS POST-DISPATCH, Nov. 10, 2002, at B3 ("The root meaning of the word suggests that religion is supposed to bind us together. If this is so, then those 'religions' that are divisive should be called by another name. To call a belief that is designed to be a wedge a religion is deceptive to the point of being fraudulent.").
37. More recently, commenting on the Court's two Ten Commandments cases, Danforth asserted that "efforts to haul references of God into the public square, into schools and courthouses, are far more apt to divide Americans than to advance faith." John C. Danforth, Onward, Moderate Christian Soldiers, N.Y. TIMES, June 17, 2005, at A27, quoted in Van Orden v. Perry, 125 S. Ct. 2854, 2874 n.3 (Stevens, J., dissenting)).
38. See Steven H. Shiffrin, Liberalism and the Establishment Clause, 78 CHI.-KENT L. REV. 717, 720-21 (2003) ("I have always found it strange that we might entertain a profound national commitment to the proposition that debate on public issues should be uninhibited, robust, and wide-open, but that we somehow want it to be more pallid when people of different faiths disagree."); Steven D. Smith, supra note 14, at 1248 ("In other contexts, . . . (when we are in a freedom of speech mode, for example), we may view the phenomena that comprise contention almost as positive goods: far from wringing our hands about the possibility of civil strife, we say that democracy thrives on public debate that is 'robust,' 'vehement,' and 'caustic.'" (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964))).
39. McCreary County v. ACLU, 125 S. Ct. 2722, 2745 (2005).
40. RICHARD DAWKINS, A DEVIL'S CHAPLAIN: REFLECTIONS ON HOPE, LIES, SCIENCE AND LOVE 161 (2003).
41. Lemon, 403 U.S. at 622.
42. See Mitchell v. Helms, 530 U.S. 793, 825 (2000) (plurality opinion) ("The dissent resurrects the concern for political divisiveness that once occupied the Court but that post-Aguilar cases have rightly disregarded."). But see id. at 872 n.2 (Souter, J., dissenting) ("The Court may well have moved away from considering the political divisiveness threatened by particular instances of aid as a practical criterion for applying the Establishment Clause case by case, but we have never questioned its importance as a motivating concern behind the Establishment Clause, nor could we change history to find that sectarian conflict did not influence the Framers who wrote it.").
43. See 536 U.S. 639 (2002).
44. According to the Chief Justice, "the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious." Id. at 662. In my view, Zelman was correctly decided and defensibly reasoned and the decision's conclusion and premises are normatively attractive. See generally Nicole Stelle Garnett & Richard W. Garnett, School Choice, the First Amendment, and Social Justice, 4 TEX. REV. L. & POL. 301 (2000);
45. Richard W. Garnett, Brown's Promise, Blaine's Legacy, 17 CONST. COMMENT. 651 (2000)
46. (reviewing JOSEPH P. VITERITTI, CHOOSING EQUALITY: SCHOOL CHOICE, THE CONSTITUTION, AND CIVIL SOCIETY (1999));
47. Richard W. Garnett, The Right Questions About School Choice: Education, Religious Freedom, and the Common Good, 23 CARDOZO L. REV. 1281 (2002) [hereinafter Garnett, The Right Questions].
48. For a comprehensive analysis of the Zelman decision and opinions, see, for example, Thomas C. Berg, Vouchers and Religious Schools: The New Constitutional Questions, 72 U. CIN. L. REV. 151 (2003);
49. Ira C. Lupu & Robert W. Tuttle, Zelman's Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, 78 NOTRE DAME L. REV. 917 (2003);
50. Mark Tushnet, Vouchers After Zelman, 2002 SUP. CT. REV. 1.
51. Zelman, 536 U.S. at 717 (Breyer, J., dissenting) (noting that Ohio's voucher program was "well-intentioned").
52. Id. Justice Breyer also repeatedly voiced concerns about "divisiveness" during the oral arguments in the Ten Commandments cases, Van Orden v. Perry and McCreary County v. American Civil Liberties Union of Kentucky. Transcript of Oral Argument at 15-16, Van Orden v. Perry, 125 S. Ct. 2854 (2005) (No. 03-1500) ("There is no way to [determine whether the government has gone too far in allowing a religious display] other than to look at the divisive quality of the individual display case by case. And when I do that, I don't find much divisiveness here."); Transcript of Oral Argument at 34-35, McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (No. 03-1693) ("[T]he government is not absolutely forbidden by the establishment clause to recognize the religious nature of the people nor the religious origins of much of our law . . . but it's easy to go too far and . . . you are [treading] on eggs to become far more divisive than you hoped and really end up with something worse than if you stayed out in the first place. In other words, it's a very delicate matter and it's very easy to offend people.").
53. See Michael J. Perry, Why Political Reliance on Religiously Grounded Morality Is Not Illegitimate in a Liberal Democracy, 36 WAKE FOREST L. REV. 217, 229 (2001) (distinguishing, for purposes of the debate over the role of religiously grounded arguments in public discourse, between the demands of constitutional law and those of a liberal democracy's political morality).
54. See Zelman, 536 U.S. at 723, 724 (Breyer, J., dissenting).
55. "Separation" and "separationism" are more complex notions than this introductory characterization of Justice Breyer's aims suggests. See generally, e.g., PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (2002);
56. Douglas Laycock, The Many Meanings of Separation, 70 U. CHI. L. REV. 1667 (2003) (reviewing HAMBURGER, supra);
57. Ira C. Lupu, The Lingering Death of Separationism, 62 GEO. WASH. L. REV. 230 (1994);
58. Steven D. Smith, Separation as a Tradition, 18 J.L. & POL. 215 (2002);
59. John Witte, Jr., That Serpentine Wall of Separation, 101 MICH. L. REV. 1869 (2003) (reviewing HAMBURGER, supra).
60. Zelman, 536 U.S. at 728-29 (Breyer, J., dissenting). Justice Breyer also stated that, in a "society as religiously diverse as ours, the Court has recognized that we must rely on the Religion Clauses of the First Amendment to protect against religious strife." Id. at 725; see also id. at 686 (Stevens, J., dissenting) ("I have been influenced by my understanding of the impact of religious strife on the decisions of our forebears to migrate to this continent, and on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another. Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy."); id. at 716-17 (Souter, J., dissenting) ("If the divisiveness permitted by today's majority is to be avoided in the short term, it will be avoided only by action of the political branches at the State and national levels."). Professor Feldman, in Divided By God, endorses Justice Breyer's view, insisting that "state financial aid for religious institutions does not encourage common values; it creates conflict and division." FELDMAN, supra note 9, at 245. He warns also that legislative and other debates about the details of voucher programs are a "recipe for real and deep division." Id. at 246. I disagree. See, e.g., Garnett, The Right Questions, supra note 31, at 1299-1300.
61. Cf., e.g., Marsh v. Chambers, 463 U.S. 783, 805 (1983) (Brennan, J., dissenting) (noting that "principles of separation and neutrality help assure that essentially religious issues, precisely because of their importance and sensitivity, not become the occasion for battle in the political arena").
62. See, e.g., Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 198 (1992) (noting that the Establishment Clause "extinguished" "inter-denominational strife"); id. at 209-10 (contending that the Establishment Clause forbids certain government measures "because [they] will cause profound divisiveness and offense" (emphasis added)).
63. Cf. Andrew Koppelman, Secular Purpose, 88 VA. L. REV. 87, 125 (2002) (stating that "[e]ndorsing some citizens' [religious] beliefs and repudiating others, as [Justice Scalia's reading of the Establishment Clause] would do, would be politically divisive" and therefore "out of sync with the reasons for the Establishment Clause").
64. 536 U.S. at 662 n.7. Chief Justice Rehnquist had previously expressed skepticism about the constitutional relevance in Establishment Clause cases of "political divisiveness." See, e.g., Bowen v. Kendrick, 487 U.S. 589, 617 n.14 (1988) ("We also disagree with the District Court's conclusion that the AFLA is invalid because it is likely to create political division along religious lines. It may well be that because of the importance of the issues relating to adolescent sexuality there may be a division of opinion along religious lines as well as other lines. But the same may be said of a great number of other public issues of our day." (citation omitted)); Mueller v. Allen, 463 U.S. 388, 403 n.11 (1983) (stating that the question of "political divisiveness" should be "regarded as confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools").
65. Zelman, 536 U.S. at 662 n.7. Justice O'Connor made a similar point, nearly twenty years ago, dissenting in Aguilar v. Felton: "It is curious indeed to base our interpretation of the Constitution on speculation as to the likelihood of a phenomenon which the parties may create merely by prosecuting a lawsuit." Aguilar v. Felton, 473 U.S. 402, 429 (1985) (O'Connor, J., dissenting), overruled by Agostini v. Felton, 521 U.S. 203, 236 (1997); see also Lynch v. Donnelly, 465 U.S. 668, 684-85 (1984) ("A litigant cannot, by the very act of commencing a lawsuit, . . . create the appearance of divisiveness and then exploit it as evidence of entanglement.").
66. Zelman, 536 U.S. at 662 n.7.
67. Lemon v. Kurtzman, 403 U.S. 602, 622; cf. Steven J. Heyman, Ideological Conflict and the First Amendment, 78 CHI.-KENT L. REV. 531, 559 (2003) (suggesting that "conflict" between "differing views of justice and the common good" is an "inherent part of law and politics in a liberal democratic society").
68. See Frank Michelman, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337, 1359 (1990) (criticizing as "idolatry" the "kind of aversion and squeamishness towards open political conflict displayed by [supporters of a flag-burning amendment]");
69. see also Richard H. Pildes, Democracy and Disorder, 68 U. CHI. L. REV. 695, 717 (2001) (noting that "in the political realm, we cling . . . tenaciously to the fear that too much politics, or too competitive a political system, will bring instability, fragmentation, and disorder"); cf., e.g., Rochin v. California, 342 U.S. 165, 172 (1952) ("[T]he proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience.").
70. See, e.g., KEVIN SEAMUS HASSON, THE RIGHT To BE WRONG: ENDING THE CULTURE WAR IN AMERICA OVER RELIGION (2005);
71. JAMES DAVISON HUNTER, CULTURE WARS: THE STRUGGLE TO DEFINE AMERICA (1991).
72. See, e.g., ROGER SIMON, DIVIDED WE STAND: HOW AL GORE BEAT GEORGE BUSH AND LOST THE PRESIDENCY (2001).
73. GERTRUDE HIMMELFARB, ONE NATION, TWO CULTURES: A SEARCHING EXAMINATION OF AMERICAN SOCIETY IN THE AFTERMATH OF OUR CULTURAL REVOLUTION (2001);
74. see also, e.g., STANLEY B. GREENBERG, THE TWO AMERICAS: OUR CURRENT POLITICAL DEADLOCK AND HOW TO BREAK IT (2004);
75. E.J. Dionne, One Nation Deeply Divided, WASH. POST, Nov. 7, 2003, at A31 ("The red states get redder, the blue states get bluer, and the political map of the United States takes on the coloration of the Civil War.");
76. David Von Drehle, Political Split Is Pervasive, WASH. POST, Apr. 25, 2004, at A1 ("American politics appears to be hardening into uncompromising camps, increasingly identified with the two parties.");
77. David Finkel, A Liberal Life in the City by the Bay, WASH. POST, Apr. 27, 2004, at A1 (profiling one of the nation's "bluest" areas);
78. David Finkel, For a Conservative, Life Is Sweet in Sugar Land, Tex., WASH. POST, Apr. 26, 2004, at A1 (profiling one of the nation's "reddest" counties).
79. MICHAEL BARONE, HARD AMERICA, SOFT AMERICA: COMPETITION vs. CODDLING AND THE BATTLE FOR THE NATION'S FUTURE (2004).
80. See generally, e.g., DAVID BROOKS, ON PARADISE DRIVE: HOW WE LIVE NOW (AND ALWAYS HAVE) IN THE FUTURE TENSE (2004);
81. DAVID BROOKS, BOBOS IN PARADISE: THE NEW UPPER CLASS AND HOW THEY GOT THERE (2001);
82. David Brooks, One Nation, Slightly Divisible, ATLANTIC MONTHLY, Dec. 2001, at 53 [hereinafter Brooks, One Nation];
83. David Brooks, People Like Us, ATLANTIC MONTHLY, Sept. 2003, at 29 [hereinafter Brooks, People].
84. JOHN SPERLING ET AL., THE GREAT DIVIDE: RETRO v. METRO AMERICA (2004).
85. Sharon Waxman, Two Americas of "Fahrenheit" and "Passion": Urban Moviegoers for Anti-Bush Documentary, Suburban Audience for Religious Epic, N.Y. TIMES, July 13, 2004, at E1.
86. See William Powers, The Great Shopping Divide, 36 NAT'L J. 3700 ("Are you a Wal-Mart person, or a Whole Foods person?").
87. FELDMAN, supra note 9, at 7-8 (2005).
88. See Joel Kotkin, Red, Blue and . . . so 17th Century, WASH. POST, Mar. 28, 2004, at B1 (comparing the state of political affairs in mid-17th century England to those that obtain in the United States today).
89. Brooks, One Nation, supra note 49, at 54 ("I've crossed the Meatloaf Line; from here on there will be a lot fewer sun-dried-tomato concoctions on restaurant menus and a lot more meatloaf platters.").
90. Readers Split, Left, Right (And Center), N.Y. TIMES, Mar. 13, 2004, at B7 ("A study of purchase patterns of political books reveals that buyers of liberal books . . . tend to buy only other liberal books, while buyers of conservative books . . . usually buy only other conservative books.").
91. See Howard Kurtz, Making a Left at the Mike: New Radio Network To Take Liberal Leap, WASH. POST, Mar. 21, 2004, at D1.
92. See Bill Bishop, The Growing Cost of Political Uniformity, AUSTIN AM.-STATESMAN, Apr. 8, 2004, at A-1 (noting that "[m]ost Americans live in counties that haven't changed their party preference in presidential elections in more than a generation" and, in recent decades, "[p]lace aligned with ideology, which aligned with party. Like-minded people came to live in the same place, which made it more likely that the group would polarize");
93. Brooks, People, supra note 49, at 29 ("[E]very place becomes more like itself. . . . Once [people] find a town in which people share their values, they flock there, and reinforce whatever was distinctive about the town in the first place.").
94. It is worth noting, though, that American counties - and particularly suburban ones - are increasingly less segregated on the basis of race. According to data compiled by John Logan of the Mumford Center for Comparative Urban and Regional Research, segregation between blacks and whites at the county level declined by 3.7% during the same time that segregation by major-party affiliation increased by 47%. See Timothy Noah, Mister Landslide's Neighborhood, SLATE, Apr. 7, 2004, http://www.slate.com/id/2098387/ (discussing Logan study).
95. See Noah Schachman, Online Matchmakers Give Dating a Partisan Tilt, N.Y. TIMES, July 22, 2004, at G8.
96. See Lada Adamic & Natalie Glance, The Political Blogosphere and the 2004 U.S. Election: Divided They Blog (Mar. 4, 2005), http://www.blogpulse.com/ papers/2005/AdamicGlanceBlogWWW.pdf.
97. See David Brooks, Fly the Partisan Skies, N.Y. TIMES, Apr. 6, 2004, at A23.
98. See CHRISTOPHER LASCH, THE REVOLT OF THE ELITES 80-81 (1995) ("[H]aving sealed [ourselves] off from arguments and events that might call [our] own convictions into question, [we] no longer attempt to engage [our] adversaries in debate."). Professor Robert Nagel sounded a similar alarm: Disagreement about issues like abortion, homosexuality, and the place of religion in public life is sufficiently profound and systematic as to suggest that Americans are split by two fundamentally different worldviews. The danger is that this division is too wide for discourse or compromise, indeed, too wide for any peaceful resolution.
99. ROBERT F. NAGEL, THE IMPLOSION OF AMERICAN FEDERALISM 3 (2001) (footnote omitted).
100. See, e.g., MORRIS P. FIORINA ET AL., CULTURE WAR? THE MYTH OF A POLARIZED AMERICA (2005);
101. ALAN WOLFE, ONE NATION, AFTER ALL: WHAT MIDDLE-CLASS AMERICANS REALLY THINK ABOUT: GOD, COUNTRY, FAMILY, RACISM, WELFARE, IMMIGRATION, HOMOSEXUALITY, WORK, THE RIGHT, THE LEFT, AND EACH OTHER (1998);
102. Jonathan Rauch, Bipolar Disorder, ATLANTIC MONTHLY, Jan. 2005, at 102, 102 ("America today is divided over the question whether America is divided.");
103. Michael Robinson & Susan Ellis, Purple America, WKLY. STANDARD, Aug. 16-23, 2004, at 27 ("The theory of red states versus blue states is about as wide of the mark as it is widely accepted.");
104. Robert J. Samuelson, Polarization Myths, WASH. POST, Dec. 3, 2003, at A29 ("What's actually happened is that our political and media elites have become polarized, and they assume that this is true for everyone else. It isn't.");
105. John Tierney, A Nation Divided? Who Says?, N.Y. TIMES, June 13, 2004, § 4, at 1.
106. FELDMAN, supra note 9, at 235.
107. Amy Sullivan, Do The Democrats Have a Prayer?, WASH. MONTHLY, June 2003, at 30 ("Today, conventional wisdom holds that the best way to predict a person's party affiliation is to ask how often they go to church. As political commentator Michael Barone has noted, 'Americans increasingly vote as they pray, or don't pray.'").
108. A widely noted Pew Forum study appears to confirm Barone's quip. See News Release, The Pew Forum on Religion and Public Life, Religion and Politics: Contention and Consensus (July 24, 2003), http://pewforum.org/publications/ surveys/religion-politics.pdf ("Religion is a critical factor these days in the public's thinking about contentious policy issues and political matters."). A more recent Pew Forum study confirms: "By far the most powerful new reality at the intersection of religion and politics is this: Americans who regularly attend worship services and hold traditional religious views increasingly vote Republican, while those who are less connected to religious traditions and more secular in their outlook tend to vote Democratic."
109. PEW F. ON RELIGION & PUB. LIFE, TRENDS 2005, at 26 (2005), http://pewresearch.org/assets/files/trends2005-religion.pdf;
110. see also, e.g., PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, EVENLY DIVIDED AND INCREASINGLY POLARIZED: 2004 POLITICAL LANDSCAPE 7 (2003), http://people-press.org/reports/pdf/196.pdf ("[T]his remains a country that is almost evenly divided politically - yet further apart than ever in its political values.");
111. James L. Guth et al., America Fifty/Fifty, FIRST THINGS, Oct. 2001, at 22 ("Clearly there is a new religious order in American electoral politics, one characterized not only by the distinctive partisanship of religious traditions, but also by theological polarization within the nation's three largest traditions."); id. at 25 ("Religion played a key role in determining both the partisan polarization and the disengagement that characterized the public in 2000.").
112. Louis Bolce & Gerald DeMaio, Our Secularist Democratic Party, PUB. INT., Fall 2002, at 3. Sociologist Alan Wolfe, however, suggests that the Democratic Party is itself divided over the question of "religion itself and the role it ought to play in public life."
113. Alan Wolfe, The God Gap: How Religion Divides the Democrats, BOSTON GLOBE, Sept. 19, 2004, at D1.
114. Charles Krauthammer, What Makes the Bush Haters So Mad?, TIME, Sept. 22, 2003, at 84 (noting that Julian Bond of the NAACP "speaks of [President] Bush's staffing his Administration with 'the Taliban wing of American politics'"); see also Bolce & DeMaio, supra note 66, at 13 (contending that "[o]ne has to reach back to pre-New Deal America, when political divisions between Catholics and Protestants encapsulated local ethno-cultural cleavages over prohibition, immigration, public education, and blue laws, to find a period when voting behavior was influenced by [the current] degree of antipathy toward a religious group [i.e., 'fundamentalists']");
115. Democrats Eye Janklow's House Seat, WASH. POST, May 31, 2004, at A6 (noting Sen. Tim Johnson's expressed desire to "send a message to the 'Taliban wing' of the Republican party").
116. See Transcript of Oral Argument at 44-45, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (No. 02-1624). Mr. Newdow observed that "the country went [berserk] because people were so upset that God was going to be taken out of the Pledge of Allegiance," and suggested that this fact tended to show that the inclusion by Congress of the term "Under God" in the Pledge was "divisive." Id. at 44. Chief Justice Rehnquist then asked "what the vote was in Congress apropos of divisiveness to adopt the Under God phrase?" Id. When told by Mr. Newdow that the vote was "apparently unanimous," the Chief Justice observed wryly, "Well, that doesn't sound divisive." Id. Mr. Newdow's retort - "that's only because no atheist can get elected to public office" - was apparently greeted with boisterous applause, causing the Chief Justice to threaten to clear the gallery. Id. at 44-45.
117. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 38 (2004) (O'Connor, J., concurring in the judgment). Indeed, she continued, "[g]iven the vigor and creativity of [Establishment Clause challenges over the years], I find it telling that so little ire has been directed at the Pledge." Id. at 39.
118. Van Orden v. Perry, 125 S. Ct. 2854, 2871 (2005) (Breyer, J., concurring); cf. id. at 2897 (Souter, J., dissenting) ("I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause."). Justice Breyer's conclusion that, on balance, the divisiveness "costs" of removing the display were likely to outweigh removal's cohesiveness "benefits" is consonant with the argument - advanced, for example, by both Chris Eberle and Michael Perry - that the "divisiveness" argument against the employment of religiously grounded moral arguments is, in the end, a consequentialist argument. See MICHAEL J. PERRY, UNDER GOD? RELIGIOUS FAITH AND LIBERAL DEMOCRACY 155-56 n.12, 162 n.41 (2003) (discussing, inter alia, email correspondence with Chris Eberle).
119. See, e.g., Stephen Breyer, Our Democratic Constitution, 77 N.Y.U. L. REV. 245, 252-53 (2002) ("[T]he First Amendment's constitutional role is not simply one of protecting the individual's 'negative' freedom from governmental restraint. The Amendment in context also forms a necessary part of a constitutional system designed to sustain that democratic self-government. The Amendment helps to sustain the democratic process both by encouraging the exchange of ideas needed to make sound electoral decisions and by encouraging an exchange of views among ordinary citizens necessary to their informed participation in the electoral process.").
120. ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 27 (1960) (emphasis omitted).
121. For more on these doctrines, see generally, for example, Randall P. Bezanson, The Government Speech Forum: Forbes and Finley and Government Speech Selection Judgments, 83 IOWA L. REV. 953 (1998);
122. Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377 (2001);
123. Richard W. Garnett, Less Is More: Justice Rehnquist, the Freedom of Speech, and Democracy, in THE REHNQUIST LEGACY 26 (Craig M. Bradley ed., 2006);
124. Michael W. McConnell, The Selective Funding Problem: Abortion and Religious Schools, 104 HARV. L. REV. 989 (1991).
125. See Lillian R. BeVier, Campaign Finance Reform: Specious Arguments, Intractable Dilemmas, 94 COLUM. L. REV. 1258, 1266-76 (1994);
126. Lillian R. BeVier, Rehabilitating Public Forum Doctrine: In Defense of Categories, 1992 SUP. CT. REV. 79, 102-18;
127. Eugene Volokh, Shift Shows, NAT'L REV. ONLINE, June 28, 2002, http://www.nationalreview.com/comment/comment-volokh062802.asp.
128. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH 10 (1998).
129. Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 664 (2000) (Stevens, J., dissenting) ("[E]very state law prohibiting discrimination is designed to replace prejudice with principle . . . ."). See generally Larry Alexander, Illiberalism All the Way Down: Illiberal Groups and Two Conceptions of Liberalism, 12 J. CONTEMP. L. ISSUES 625 (2002).
130. ROBERTO MANGABEIRA UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME? 72 (1996). Unger notes that this "discomfort with democracy shows up in every area of contemporary legal culture," including "in an ideal of deliberative democracy as most acceptable when closest in style to a polite conversation among gentlemen in an eighteenth-century drawing room . . . ." Id. at 72-73.
131. See, e.g., FISS, supra note 75, at 19 ("The phrase 'freedom of speech' implies an organized and structured understanding of freedom, one that recognizes certain limits as to what should be included and excluded. This is the theory upon which speech regulation that aims to protect national security or public order is sometimes allowed; it should be equally available when the state is trying to preserve the fullness of debate. Indeed, the First Amendment should be more embracing of such regulation, since that regulation seeks to further the democratic values that underlie the First Amendment itself.").
132. See, e.g., CASS SUNSTEIN, REPUBLIC.COM 200 (2001) ("For citizens in a republic, freedom requires exposure to a diverse set of topics and opinions. This is not a suggestion that people should be forced to read and view materials that they abhor. But it is a claim that a democratic polity, acting through democratic organs, tries to promote freedom, not simply by respecting consumer sovereignty, but by creating a system of communication that promotes exposure to a wide range of issues and views."); see also id. at 142 ("My basic argument . . . is that the free speech principle, properly understood, . . . does not bar government from taking steps to ensure that communications markets serve democratic self-government and other important social values.").
133. SUNSTEIN, supra note 20, at 109.
134. See, e.g., Benjamin Wittes, Memo to John Roberts, WASH. POST, Sept. 25, 2005, at T5;
135. Cass Sunstein, The Philosopher-Justice, NEW REPUBLIC, Sept. 19, 2005, at 29.
136. See STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005); see also Breyer, supra note 71.
137. Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28, 130 (2004) ("In my view, constitutional law should be oriented more toward the dangers of legislative and partisan self-entrenchment and less toward a perceived judicial need to ensure a democratic stability adequately secured already by the underlying institutional structures of American democracy.");
138. see also, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).
139. Zelman v. Simmons-Harris, 536 U.S. 639, 662 n.7 (2002) (quoting Mitchell v. Helms, 530 U.S. 793, 825 (2000) (plurality opinion)).
140. Van Orden v. Perry, 125 S. Ct. 2854, 2868 (2005) (Breyer, J., concurring). I should emphasize here that it is not necessary for purposes of this Article to dispute that many of those who called for, drafted, debated, and ratified the First Amendment hoped that the provision would, among other things, forestall or reduce strength-sapping, religion-based social conflict. Cf., e.g., Lee v. Weisman, 505 U.S. 577, 646 (1992) (Scalia, J., dissenting) ("The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife."). Professor Feldman supplies a nice quotation, from an "anonymous Virginia Federalist" who brushed off concerns that Congress might establish religion: Such a move, he said, would "disturb the union, . . . destroy justice, excite civil commotions and religious feuds, and . . . annihilate religious liberty." Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346, 400 (2002) (citation omitted). Still, as Justice Brennan observed, concurring in McDaniel v. Paty: "The mere fact that a purpose of the Establishment Clause is to reduce or eliminate religious divisiveness or strife, does not place religious discussion, association, or political participation in a [less preferred] status . . . ." McDaniel v. Paty, 435 U.S. 618, 640 (1978) (Brennan, J., concurring). What's more, Kurt Lash has observed that "[w]hatever constitutional life 'political divisiveness' had at the Founding, it was extinguished with the passage of the Fourteenth Amendment. . . . [T]hose who supported the Fourteenth Amendment not only intended to protect 'divisive' political/religious activity, they most likely celebrated its most recent accomplishment." E-mail from Kurt Lash, Professor of Law, Loyola Law School Los Angeles, to Richard Garnett, Associate Professor of Law, Notre Dame Law School (Jan. 31, 2001) (on file with author).
141. Zelman, 536 U.S. at 662 n.7.
142. Of course, it is also true that American leaders and citizens have long and often turned and appealed to religious faith as a vehicle for arriving at civic unity. See, e.g., Robert N. Bellah, Civil Religion in America, 96 DAEDALUS 1 (1967) (citing and discussing, inter alia, Lincoln's Second Inaugural and Gettysburg Addresses);
143. see also Martin E. Marty, The Widening Gyres of Religion and Law, 45 DEPAUL L. REV. 651, 661 (1996) ("The eighteenth-century framers of constitutionalism . . . made clear during three decades of argument . . . that they did understand religion's potential for defining and 'binding' a people, just as it had the potential for unsettling them and being disruptive in their civic life.").
144. JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS (1785), reprinted in FOUNDING THE REPUBLIC: A DOCUMENTARY HISTORY 89, 92 (John J. Patrick ed., Greenwood Press 1995). In an October 3, 1785 letter to George Mason, George Washington sounded a similar tone, expressing his wish that the Assessment Bill - about which he was not particularly "alarmed" - "could die an easy death," which would "be productive of more quiet to the State, than by enacting it into a Law." Letter from George Washington to George Mason (Oct. 3, 1785), http://teachingamericanhistory.org/ library/index.asp?document=305.
145. See, e.g., HAMBURGER, supra note 36, at 111-43. As Professor Hamburger puts it, "Federalist ministers felt obliged to bring their faith to bear upon party politics, especially against the man who . . . was notorious for suggesting that religion and morality and thus also religion and politics were specialized, less than fully integrated, features of human life." Id. at 112. At the same time, some on the other side warned - also foreshadowing contemporary discussions - that "[p]olitical wranglings, and party strife . . . [would] inflict . . . deep and dangerous wounds" on religious communities and congregations. Id. at 131.
146. See generally CHARLES L. GLENN, THE MYTH OF THE COMMON SCHOOL (1988);
147. LLOYD P. JORGENSON, THE STATE AND THE NON-PUBLIC SCHOOL (1987);
148. JOHN T. MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM: A HISTORY 91-126 (2003). The worry of many "leading Republican politicians, ministers, and editors" was that "an international church threatened national unity . . . ." MCGREEVY, supra, at 93.
149. FELDMAN, supra note 9, at 75 (quoting James Blaine).
150. Id. at 166 (quoting PAUL BLANSHARD, AMERICAN FREEDOM AND CATHOLIC POWER (1949)).
151. Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 231 (1948) (Frankfurter, J., concurring); see also Noah Feldman, From Liberty to Equality: The Transformation of the Establishment Clause, 90 CAL. L. REV. 673, 684-87, 695-98 (2002).
152. See FELDMAN, supra note 9, at 154-63.
153. 310 U.S. 586, 586, 596 (1940). Just a few years later, of course, the Court changed course, repudiating its Gobitis ruling in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). "For Frankfurter," Professor Feldman notes, "the Barnette case was fundamentally about the relationship between religion and American national identity, and in his view, the key to that relationship was transcendence of religious difference or particularity at the national level." FELDMAN, supra note 9, at 160.
154. 392 U.S. 236 (1968).
155. Paul Freund, Comment, Public Aid to Parochial Schools, 82 HARV. L. REV. 1680, 1691-92 (1969) (emphasis added); cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 866-67 (1992) (joint opinion) ("Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.").
156. Lemon v. Kurtzman, 403 U.S. 602, 622 (1971) (citing Freund, supra note 97, at 1692.)
157. Id. at 613 (quoting Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 674 (1970)).
158. Id. at 622 ("A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity."); see also Edward McGlynn Gaffney, Jr., Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy, 24 ST. LOUIS U. L.J. 205, 214 (1980) (noting that, concerning the First Amendment's purpose, "Burger did not cite any primary sources for his opinion.").
159. 403 U.S. at 602, 606-08 ("Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary.").
160. Id. at 614.
161. Id. at 613-14.
162. Id. at 612. Even in the course of setting the stage with what Chief Justice Burger no doubt believed was an uncontroversial observation, he invites the question, "what, exactly, is so 'extraordinarily sensitive' about this area of law?" See also, e.g., Marsh v. Chambers, 463 U.S. 783, 805 (1983) (Brennan, J., dissenting) (noting the "importance and sensitivity" of "essentially religious issues"). Does the political-divisiveness argument, which this characterization foreshadows, rest in the end on anything more than the Chief Justice's ipse dixit concerning the "sensitive" nature of this area of law?
163. Lemon, 403 U.S. at 612.
164. Id.; see also, e.g., Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 771 (1973).
165. That is, the term "respecting" probably did not indicate a desire to forbid government actions that were steps toward, or that might tend to result in, establishments of religion. Regarding the significance of the word "respecting," Judge Noonan supplies the following imaginary dialogue between a new judge and his law clerk: [New Judge:] "I would have thought 'respecting an establishment' meant 'taking into account an establishment' - in other words, the phrase in the Bill of Rights assumed that religious establishments existed and instructed Congress not to take any establishment into account, either by endowing a state-established church or by penalizing one. Am I being too simple?" [Clerk:] "You're being pretty perceptive, . . . but you're a bit out of date. Everyone's agreed that 'respecting an establishment' now means 'establishing.' They call it 'the Establishment Clause.' It'd be sheer pedantry to stick to the original language." JOHN T. NOONAN, JR., THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM 182-83 (1998).
166. See, e.g., Ira C. Lupu, Which Old Witch?: A Comment on Professor Paulsen's Lemon is Dead, 43 CASE W. RES. L. REV. 883, 888 (1993) (arguing that, although the Lemon test may not be applied mechanically by the Court in future cases, the test and its themes will continue to shape Establishment Clause doctrine and to control in lower-court decisions);
167. Michael Stokes Paulsen, Lemon is Dead, 43 CASE W. RES. L. REV. 795, 797 (1993) (contending that the Court in Weisman replaced the Lemon test with a new "coercion" test). Or, as Justice Scalia once put it, "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again . . . ." Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).
168. Lemon, 403 U.S. at 612-13 (quoting Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 674 (1970)) (citations omitted).
169. The Court stated that "the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws." Id. at 613. For background on the secular purpose requirement, see generally Koppelman, supra note 39.
170. See Lemon, 403 U.S. at 613-14 (avoiding the question whether "legislative precautions," employed to "guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former," "restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses"). In Justice Brennan's view, however, the salary-supplement programs in question were unconstitutional wholly and apart from the "too close a proximity" or "entanglement" issue. Id. at 652 (Brennan, J., concurring). For Justice Brennan, the direct subsidy by government, standing alone, to religious schools violated the Constitution. See id.; see also id. at 640 (Douglas, J., concurring) ("We have announced over and over again that the use of taxpayers' money to support parochial schools violates the First Amendment . . . .").
171. See id. at 614 ("[T]he cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion."). Strangely, though, Chief Justice Burger provided little by way of historical or theoretical explanation of why, exactly, "entanglement" is to be avoided or is prohibited by the Constitution. Justice Brennan, however, elaborated in his concurring opinion on the "real dangers of 'the secularization of a creed.'" Id. at 649 (Brennan, J., concurring).
172. Id. at 614 (majority opinion).
173. Id. (citations omitted).
174. Id. at 615. The Court observed that Rhode Island had "carefully conditioned its aid with pervasive restrictions," the administration of which, the Court was confident, would "inevitably" require "comprehensive, discriminating, and continuing state surveillance" and would "involve excessive and enduring entanglement between state and church." Id. at 619. And, the same was true, the Chief Justice noted, with respect to the Pennsylvania program, which provided aid for teachers' salaries directly to schools "controlled by religious organizations" and that "have the purpose of propagating and promoting a particular religious faith." Id. at 620; see also id. at 628 (Douglas, J., concurring) ("[T]he raison d'etre of parochial schools is the propagation of a religious faith. They also teach secular subjects; but they came into existence in this country because Protestant groups were perverting the public schools by using them to propagate their faith. The Catholics naturally rebelled."); id. at 635 ("No matter what the curriculum offers, the question is, what is taught? We deal not with evil teachers but with zealous ones who may use any opportunity to indoctrinate a class." (citing LORAINE BOETTNER, ROMAN CATHOLICISM 360 (1962) (emphasis added))); id. ("It is well known that everything taught in most parochial schools is taught with the ultimate goal of religious education in mind."); id. at 635-36 ("One can imagine what a religious zealot, as contrasted to a civil libertarian, can do with the Reformation or with the Inquisition."); id. at 657 (Brennan, J., concurring) ("[T]eaching [of secular subjects] cannot be separated from the environment in which it occurs, for its integration with the religious mission is both the theory and the strength of the religious school."). But see id. at 663 (White, J., concurring in the judgment) ("Our prior cases have recognized the dual role of parochial schools in American society: they perform both religious and secular functions."). As these quotations illustrate, the Lemon Court's premises and conclusions with respect to the monitoring and supervision of teachers and other activities in religious schools reflect a striking suspicion toward Catholic schools and their mission.
175. In other words, the monitoring required by the Establishment Clause rendered the programs unconstitutional under the Establishment Clause. Cf. Lemon, 403 U.S. at 627 (Douglas, J., concurring in the judgment) ("The surveillance or supervision of the States needed to police the grants involved in these three cases, if performed, puts a public investigator into every classroom and entails a pervasive monitoring of these church agencies by the secular authorities. Yet if that surveillance or supervision does not occur the zeal of religious proselytizers promises to carry the day and make a shambles of the Establishment Clause."); id. at 634 (noting that either "school prayers, the daily routine of parochial schools, must go" or "the state has established a religious sect"); id. at 668 (White, J., concurring) ("The Court thus creates an insoluble paradox for the State and the parochial schools."). In Tilton v. Richardson - which was decided the
176. Lemon, 403 U.S. at 622; see also, e.g., Brief for Protestants and Other Americans United for Separation of Church and State as Amici Curiae, Lemon v. Kurtzman, 403 U.S. 602 (1970) (No. 89), 1970 WL 116836, at 12 ("It does not take any great cerebration to realize what a pandora's box of religious strife will be opened if this new erosion of the principle of the separation of church and state is permitted to undermine the foundation of the First Amendment.").
177. Lemon, 403 U.S. at 622. It is interesting to note that, to Chief Justice Burger, those who support public assistance to parochial schools and their students are "partisans," while those who oppose school aid are assumed to do so for "constitutional, religious, or fiscal reasons." Cf. Brief for the United States as Amici Curiae, Lemon v. Kurtzman, 403 U.S. 602 (1970) (No. 89), 1970 WL 116843, at 22 ("[The divisiveness claim] is necessarily conjectural and is not subject to empiric demonstration. It poses difficult political problems that are more appropriate for legislative than for judicial resolution.").
178. Cf. Kenneth F. Ripple, The Entanglement Test of the Religion Clauses - A Ten Year Assessment, 27 UCLA L. REV. 1195, 1221-24 (1980) (discussing the Court's continued "use of a standard profile of religious institutions" (footnote omitted)); id. at 1226 (noting the "judgment that religiously motivated activity has a particularly grave potential for causing discord in the civil society").
179. Lemon, 403 U.S. at 622. Chief Justice Burger's appeal to realism here invites the question: "What is it about 'issues of this kind,' and not other 'kinds,' that should cause us to fear voting 'aligned with faith'?" Cf. id. at 612 ("Candor compels acknowledgment . . . that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.").
180. Id. at 622 (citing Freund, supra note 97, at 1692).
181. Id. at 622-23. The Court relies on Walz v. Tax Commission of New York, 397 U.S. 664, 695 (1970) (Harlan, J., concurring), Board of Education v. Allen, 392 U.S. 236, 249 (1923), and Abington School District v. Schempp, 374 U.S. 203, 307 (1963) (Goldberg, J., concurring).
182. Lemon, 403 U.S. at 623.
183. Id. (quoting Walz, 397 U.S. at 670) (parentheses in original).
184. Id. at 623. In his concurring opinion, Justice Douglas warned of yet another cause, or locus, of division. In his view, the pervasive monitoring that the Constitution both required and prohibits would itself - wholly and apart from the public and political debates about the programs and funding - "breed division and dissension." Id. at 636 (Douglas, J., concurring) ("[P]olicing these grants to detect sectarian instruction would be insufferable to religious partisans and would breed division and dissension between church and state."); id. at 640 (noting that the "surveillance needed" to avoid violating the Establishment Clause "would breed only rancor and dissension").
185. For a detailed and provocative examination of slippery-slope arguments generally, see Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026 (2003).
186. Lemon, 403 U.S. at 624.
187. Id.
188. Id.
189. Id.
190. Id. at 624-25.
191. Id. at 612.
192. Id. at 622.
193. Id.
194. Id. at 622-23; see also id. at 623 ("It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government.").
195. See id. at 622.
196. Id. at 625.
197. See supra text accompanying note 97.
198. Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 694 (1970) (Harlan, J., concurring); Bd. of Educ. v. Allen, 392 U.S. 236, 249 (1968) (Harlan, J., concurring); Abington School Dist. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring). Indeed, Professor Gaffney, in his 1980 study, traced the political-divisiveness argument to a "seed" planted by Justice Harlan in his concurring opinion in Walz. See Gaffney, supra note 100, at 210.
199. Walz, 397 U.S. at 694 (Harlan, J., concurring).
200. See id. at 695.
201. Id.
202. Id. By considering whether state action "politicizes" religion, Justice Harlan appears to miss the significance of his own observation that religious believers and groups have views, and - not surprisingly - often express these views. It is not entirely clear, then, what the difference is between politicization by the state of religion and sanctification of politics by religion. Is religious activism an indication that religion has been politicized by the state or simply that religion is doing what it does?
203. Id. at 695. Professor Gaffney suggests that Justice Harlan's worries here should be put in the context of the "intense political involvement" of certain religious leaders and ministers at the time, particularly with respect to the war in Vietnam. Gaffney, supra note 100, at 210 n.29; see also Walz, 397 U.S. at 670 ("Adherents of particular faiths and individual churches frequently take strong positions on public issues including . . . vigorous advocacy of legal or constitutional positions. Of course, churches as much as secular bodies and private citizens have that right.").
204. Walz, 397 U.S. at 695 (citing also Justice Harlan's concurring opinion in Allen and Justice Goldberg's concurring opinion in Schempp).
205. Id. at 696.
206. See 392 U.S. 236, 249 (1968) (Harlan, J., concurring).
207. Id.
208. Id.
209. Id. (quoting Abington School Dist. v. Schempp, 374 U.S. 203, 307 (1963) (Goldberg, J., concurring)).
210. Schempp, 374 U.S. at 306 (Goldberg, J., concurring); see also id. ("Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political and personal values derive historically from religious teachings.").
211. Id. at 307; see also FELDMAN, supra note 9, at 180 (observing that the "question of divisiveness" was "squarely in view" in Schempp). Note Justice Goldberg's juxtaposition here - as if they were the same or of similar constitutional import - of "divisive influences" and "inhibitions of freedom." Shempp, 374 U.S. at 307.
212. Lemon v. Kurtzman, 403 U.S. 602, 622 (1971).
213. NOWAK & ROTUNDA, supra note 116, at 1193. In Nyquist, 413 U.S. 756 (1973), "a form of completely neutral aid - a tuition voucher plan - was stricken in part because of the belief that any significant aid to students in sectarian schools caused political division." NOWAK & ROTUNDA, supra note 116, at 1193. In Zelman v. Simmons-Harris, 536 U.S. 659 (2002), of course, the Justices upheld a school-voucher plan, but were able to distinguish Nyquist by noting that the program at issue in that case provided aid only to private schools and private-school students, while many of the benefits of the program at issue in Zelman were available to students attending public schools as well. The Court in Zelman stated that "we now hold that Nyquist does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion." Zelman, 536 U.S. at 662.
214. See Nyquist, 413 U.S. at 761-69 (describing programs and laws at issue).
215. The Court acknowledged the valid, secular purpose behind the measures at issue, see id. at 773, but concluded that they had the impermissible primary effect of "advancing religion," see id. at 789.
216. "One factor of recurring significance in this weighing process is the potentially divisive political effect of an aid program." Id. at 795. In other words, the potentially divisive effects of a program are significant in a weighing process that evaluates the States' "substantial reasons" against "the relevant provisions and purposes of the First Amendment." See id. This does not suggest a precise or predictable approach to the task of determining the constitutional validity of challenged programs.
217. Because of "the importance of the competing societal interests implicated here," Justice Powell added and expanded upon the observation that "apart from any specific entanglement of the State in particular religious programs, assistance of the sort here involved carries grave potential for entanglement in the broader sense of continuing political strife over aid to religion." Id. at 794.
218. See id. at 795 & n.53 (noting, inter alia, that "[f]ew would question most of the legislative findings supporting this statute" and that the "underlying reasons" for the laws were "substantial reasons"; and quoting the lower court's statement that "[t]his litigation is, in essence, a conflict between two groups of extraordinary good will and civic responsibility").
219. Id. at 797-98.
220. Cf. id. at 797 & n.56 (observing that the political realities of expenditures, particularly annual ones in times of scarcity and the "self-perpetuating tendencies of any form of government aid to religion," when combined with the fact that "the underlying issue is the deeply emotional one of Church-State relationships," are such that "the potential for seriously divisive political consequences needs no elaboration").
221. Id. at 796 (noting that such competition has "occasioned considerable civil strife, 'generated in large part' by competing efforts to gain or maintain the support of government" (quoting Everson v. Bd. of Educ., 330 U.S. 1, 8-9 (1947))).
222. See id. ("[W]hat is at stake as a matter of policy . . . is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point." (citing Walz v. Tax Comm'n of N.Y., 397 U.S. at 694 (1970))). This concern with the efficient operation and integrity of the political system is a consistent theme in Justice Powell's Establishment Clause opinions.
223. See, e.g., Wolman v. Walter, 433 U.S. 229, 262 (1977) (Powell, J., concurring in part and dissenting in part) ("Our decisions in this troubling area draw lines that often must seem arbitrary.").
224. 421 U.S. 349 (1975), overruled by Mitchell v. Helms, 530 U.S. 793 (2000).
225. See id. at 358. These "auxiliary services" included remedial and accelerated instruction, guidance counseling, testing, and speech and hearing services, psychological counseling, "and such other secular, neutral, nonideological services as are of benefit to nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth." Id. at 352-53. Pennsylvania had also authorized the loaning of state-owned textbooks to children in private schools, see id. at 354, and this policy was - in light of Allen - easily upheld, see id. at 359-62.
226. Id. at 372. Justice Brennan, in his separate opinion, expanded on this observation, and insisted that the majority had erred in too quickly equating the textbook provision at issue with the program upheld in Allen. See id. at 379-81 (Brennan, J., concurring in part and dissenting in part). The latter case, he now believed, had not appreciated the importance of the political-divisiveness specter - nor had he in Lemon, he conceded. See id. at 383 n.3. In fact, he maintained, the Argument, if applied in Meek, compelled the invalidation of the textbook provisions as well. See id. at 378-79.
227. Id. at 386 (Burger, C.J., concurring in the judgment in part and dissenting in part).
228. See id. at 385-86.
229. 433 U.S. 229 (1977), overruled by Mitchell v. Helms, 530 U.S. 793 (2000).
230. See id. at 233-34.
231. Ohio's efforts to loan to students or their parents certain nonreligious "instructional materials" - projectors, tape recorders, maps, etc. - were invalidated on the ground that "[s]ubstantial aid to the educational function of [religious] schools . . . necessarily results in aid to the sectarian school enterprise as a whole." Id. at 250 (quoting Meek v. Pittinger, 421 U.S. at 366). The use of public funds for "field trip transportation and services" for students in private schools was also invalidated. See id. at 254 ("[T]he public school authorities will be unable adequately to insure secular use of the field trip funds without close supervision of the nonpublic teachers. This would create excessive entanglement . . . ."). On the other hand, as in Meek, the Court permitted the lending of "secular" textbooks to students attending private (and, in practice, overwhelmingly Catholic) schools. See id. at 237-38.
232. In several of the parties' briefs and briefs of amici, however, the argument was prominently invoked. See, e.g., Reply Brief for Appellants at 21-22, Wolman, 433 U.S. 229 (No. 76-496), 1977 WL 189137 ("Nor has there been a lack of political divisiveness. In Ohio, as elsewhere, groups have formed on both sides of these issues . . . who have sought, often bitterly, to impress their points of view upon the legislature . . . ."); Brief of The State Convention of Baptists in Ohio et al. as Amici Curiae at 26-27, Wolman, 433 U.S. 229 (No. 76-496), 1977 WL 189147 ("The Ohio legislature, bowing to intensive lobbying, has attempted time and again to thread the needle between Allen and the various other standards established by the Courts. . . . Rather than ending religious divisiveness, the adoption of each new test and each attempt to distinguish Allen has brought new litigation and increased religious-political strife.").
233. Wolman, 433 U.S. at 256 (Brennan, J., concurring in part and dissenting in part).
234. Id. at 259 (Marshall, J., concurring in part and dissenting in part) (emphasis added).
235. Id. at 259-60 ("[B]ecause general welfare programs do not assist the sectarian functions of denominational schools, there is no reason to expect that political disputes over the merits of those programs will divide the public along religious lines."). Justice Marshall also stated that an appropriate appreciation for the "divisive political potential" of "programs of aid to sectarian schools" required that Allen be overruled. See id. at 259 ("Allen did not consider the significance of the potential for political divisiveness inherent in programs of aid to sectarian schools.").
236. Id. at 263 (Powell, J., concurring in part and dissenting in part). As in Meek, Justice Powell's concern went beyond the division that might naturally attend the appropriations process. He sounded a broader alarm, about "denominational control."
237. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 617 n.14 (1988) ("We also disagree with the District Court's conclusion that the [Act] is invalid because it is likely to create political division along religious lines. It may well be that because of the importance of the issues relating to adolescent sexuality there may be a division of opinion along religious lines as well as other lines. But the same may be said of a great number of other public issues of our day." (citation omitted)); Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 661 n.8 (1980) ("We find no merit whatever in appellants' argument . . . that the extent of entanglement here is sufficient to raise the danger of future political divisiveness along religious lines."); Roemer v. Bd. of Pub. Works, 426 U.S. 736, 765-66 (1976) (endorsing, as "entirely sound," the conclusion that the aid program in question was constitutional - and not excessively divisive - because, inter alia, of the "substantial autonomy of the colleges" receiving the aid). See generally, e.g., NOWAK & ROTUNDA, supra note 116, at 1195-97 (describing these developments).
238. 473 U.S. 373 (1985)
239. 473 U.S. 402 (1985). Both the Ball and Aguilar decisions have, of course, been overruled. See Agostini v. Felton, 521 U.S. 203 (1997).
240. 473 U.S. at 398. The Court also describes the program and the "sectarian" character of many of the schools at which the programs operated. See id. at 375-79.
241. See id. at 397 n.14. The trial court had concluded, though, that the programs in question "entailed an unacceptable level of entanglement, both political and administrative, between the public school systems and the sectarian schools." Id. at 380-81. In several of the briefs filed in the case, though, the Argument was invoked or engaged. See, e.g., Brief of the Baptist Joint Committee on Public Affairs et al. as Amici Curiae in Support of Respondents at 26, Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985) (No. 83-990), 1984 WL 565398 (warning that judicial approval of "schemes" like the one at issue in Ball "would create divisiveness along religious lines the likes of which this country has not seen. The current anti-clericalism would be multiplied many fold"); Brief of the United States as Amicus Curiae Supporting Petitioners at 24, Ball, 473 U.S. 373 (1985) (No. 83-990), 1984 WL 565395 (noting that it is "difficult to know which side in a religiously-related dispute should prevail when a court determines that the political divisiveness of the controversy is too great to permit resolution by elected officials").
242. Ball, 473 U.S. at 382. The way through this tension - a solution which Justice Brennan attributes to the Founders - is the privatization of religion. See id. at 382 ("The solution to this problem adopted by the Framers and consistently recognized by this Court is jealously to guard the right of every individual to worship according to the dictates of conscience while requiring the government to maintain a course of neutrality among religions, and between religion and nonreligion.").
243. Id. at 383.
244. Aguilar, 473 U.S. at 404. The Court also noted that the funds were used to pay for the teaching of "remedial reading, reading skills, remedial mathematics, [and] English as a second language" to Title I's low-income beneficiaries. Id. at 406.
245. See id. at 409. As in Lemon, this conclusion depended crucially on the Court's characterization of the parochial schools at issue as "pervasively sectarian," and therefore in need of careful monitoring to prevent the funding of religious activities. Id. at 411-13.
246. Put differently, the Establishment Clause simultaneously requires and forbids the careful supervision and monitoring of publicly funded teachers in parochial schools. See id. at 420-21 (Rehnquist, J., dissenting) (quoting Wallace v. Jaffree, 472 U.S. 38, 109 (1985) (Rehnquist, J., dissenting)) (referring to "Catch-22 paradox").
247. Id. at 414 (majority opinion).
248. See id. at 413 (noting the Establishment Clause's objective of "'prevent[ing] intrusion of either [church or state] into the precincts of the other'" (quoting Lemon v. Kurtzman, 403 U.S. 602 (1971))); id. at 414 ("'[T]he picture of state inspectors prowling the halls of parochial schools . . . surely raises more than an imagined specter of governmental "secularization of a creed."'" (quoting Lemon, 403 U.S. at 650 (opinion of Brennan, J.))).
249. Id. at 415 (Powell, J., concurring) (quoting Felton v. U.S. Dept. of Educ., 739 F.2d 48, 72 (2d Cir. 1984)).
250. Id. at 416.
251. Id. (citing Wolman v. Walter, 433 U.S. 229, 263 (1977) (Powell, J., concurring in part and dissenting in part)); cf. Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 796 (1973) ("[W]hat is at stake . . . is preventing that kind and degree of governmental involvement in religious life that . . . frequently strain a political system to the breaking point.").
252. Aguilar, 473 U.S. at 417 (Powell, J., concurring).
253. Id. at 416 (stating that there will, unavoidably, be "competition and strife," and that it will, unavoidably, be the case that "politics will enter into any state decision to aid parochial schools").
254. See id. at 417 ("[A]id to parochial schools of the sort at issue here potentially leads to 'that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.'" (quoting Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 694 (1970) (Harlan, J., concurring))). Justice Powell's opinion here raises the question whether the "involvement" at issue here - the involvement that triggers the objectionable strife - is the monitoring or the funding itself.
255. Id. (emphasis added).
256. See id. at 419 (Burger, C.J., dissenting) (expressing "concern that the Court's obsession with the criteria identified in [Lemon] has led to results that are 'contrary to the long-range interests of the country'"); see also id. at 421 (Rehnquist, J., dissenting) (complaining that the Court had "traveled far afield from the concerns which prompted the adoption of the First Amendment when we rely on gossamer abstractions to invalidate a law which obviously meets an entirely secular need").
257. Id. at 427 (O'Connor, J., dissenting); see also id. at 429 ("The Court's reliance on the potential for political divisiveness as evidence of undue entanglement is also unpersuasive. There is little record support for the proposition that [the program] has ignited any controversy other than this litigation.").
258. Id. at 429. Justice O'Connor also noted that in Lynch v. Donnelly, 465 U.S. 668, 687 (1984), the "concurring opinion . . . suggest[ed] that Establishment Clause analysis should focus solely on the character of the government activity that might cause political divisiveness" and that "'the entanglement prong of the Lemon test is properly limited to institutional entanglement.'" Aguilar, 473 U.S. at 429 (quoting Lynch, 465 U.S. at 687).
259. Aguilar, 473 U.S. at 429 ("It is curious indeed to base our interpretation of the Constitution on speculation as to the likelihood of a phenomenon which the parties may create merely by prosecuting a lawsuit.").
260. See, e.g., Larkin v. Grendel's Den, Inc., 459 U.S. 116, 127 (1982) (invalidating a Massachusetts zoning statute that prohibited the granting of a liquor license to an establishment located within 500 feet of a church if the church objected, noting that, by vesting an effective "veto" with religious institutions, the statute "enmeshes churches in the processes of government," and created the danger of political divisiveness along religious lines and therefore failed the Lemon test); cf. McDaniel v. Paty, 435 U.S. 618, 629-30 (1978) (Brennan, J., concurring in the judgment) (agreeing that Tennessee law prohibiting ministers from serving at a constitutional convention was unconstitutional, and emphasizing that it was impermissible to assume that ministers elected to public office "will necessarily exercise their powers and influence to promote the interests of one sect or thwart the interests of another, thus pitting one against the others, contrary to the anti-establishment principle with its command of neutrality").
261. Aguilar, 473 U.S. at 429 (O'Connor, J., dissenting); see also Mitchell v. Helms, 530 U.S. 793, 825 (2000) (plurality opinion) (upholding federal law authorizing loan of educational equipment to schools, including private and religious schools, and rejecting any "resurrect[ion]" of the political-divisiveness inquiry, which was "rightly disregarded" after Aguilar); Bowen v. Kendrick, 487 U.S. 589, 617 n.14 (1988) (upholding Adolescent Family Life Act, which provided grants to religious and other institutions providing counseling on teenage sexuality, and stating that "the question of 'political divisiveness' should be regarded as confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools." (quoting Mueller v. Allen, 463 U.S. 388, 403 n.11 (1983))); Corp. of the Presiding Bishop v. Amos, 483 U.S. 327, 339 n.17 (1987) ("'[T]his Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to so hold today. This case does not involve a direct subsidy to church-sponsored schools or colleges, or other religious institutions, and hence no inquiry into political divisiveness is even called for . . .'" (quoting Lynch, 465 U.S. at 684)); Mueller, 463 U.S. at 403 n.11 (1983) (upholding a Minnesota provision that permitted taxpayers to deduct educational expenses from their state income-tax returns, whether those expenses were associated with public or private schooling, and stating that Lemon's "political divisiveness" language should be "confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools."). In neither Bowen nor Mueller was it explained what it was about the political-divisiveness argument, or the arguments pressed in Lemon, that justified such a limitation. See, e.g., Lambeth v. Bd. of Comm'rs of Davidson County, 407 F.3d 266, 273 (4th Cir. 2005) (stating that "[t]he Court's 'political divisiveness' rubric is . . . inapplicable" to cases outside the parochial-school-funding context). To be sure, the cabining or confining of the argument from division has not been without exceptions. See, e.g., Marsh v. Chambers, 463 U.S. 783, 800-01, 805 (1983) (Brennan, J., dissenting) (insisting that "any group of law students" would, employing Lemon, invalidate Nebraska's practice of allowing a paid chaplain to open legislative sessions with a prayer and arguing that the Establishment Clause seeks, "with regard to matters that are essentially religious . . . that there should be no political battles").
262. See, e.g., Agostini v. Felton, 521 U.S. 203, 233-34 (1997) (restructuring the Lemon test and rejecting the idea that "administrative cooperation" and "political divisiveness" represent independent bases for invalidating state actions). Claims about division have also been pressed in cases that turned on another of Lemon's prongs. In Edwards v. Aguillard, 482 U.S. 578, 596-97 (1987), for example, the Court invalidated - as lacking the required "secular purpose" - Louisiana's "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act." Dissenting from this disposition, Justice Scalia offered the reminder that "political activism by the religiously motivated is a part of our heritage" and that "[t]oday's religious activism may give us the Balanced Treatment Act, but yesterday's resulted in the abolition of slavery, and tomorrow's may bring relief for famine victims." Id. at 615 (Scalia, J., dissenting).
263. Cf. Lupu & Tuttle, supra note 31, at 953-54 (concluding that the Argument has "kept a small toehold" in the area of Establishment Clause challenges to government speech on religious issues).
264. 465 U.S. 668 (1984).
265. Id. at 679 ("We have repeatedly emphasized our unwillingness to be confined to any single test in this sensitive area.").
266. Id. at 684 ("[T]his Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct.").
267. Id. at 675 ("Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders."); id. at 680 (noting City's display need not be considered an unconstitutional endorsement of religion, but instead a depiction of a "significant historical religious event long celebrated in the Western World").
268. See id. at 688 (O'Connor, J., concurring).
269. Id. at 689 ("[W]e have never relied on divisiveness as an independent ground for holding a governmental practice unconstitutional."); cf. id. at 703 (Brennan, J., dissenting) ("[T]he quiescence of those opposed to the crèche may have reflected nothing more than their sense of futility in opposing the majority.").
270. See id. at 687 (O'Connor, J., concurring) (framing inquiry in terms of whether government makes religion relevant to one's "standing in the political community").
271. See 492 U.S. 573, 627 (1989) (O'Connor, J., concurring) ("If government is to be neutral in matters of religion, rather than showing either favoritism or disapproval towards citizens based on their personal religious choices, government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community.").
272. See id. at 651 n.10 (Stevens, J., concurring in part and dissenting in part) ("These cases illustrate the danger that governmental displays of religious symbols may give rise to unintended divisiveness, for the net result of the Court's disposition is to disallow the display of the crèche but to allow the display of the menorah."). Judge McConnell has criticized the endorsement test for precisely these reasons. In his view, the problem with the endorsement approach "is that it exacerbates religious division and discord by heightening the sense of grievance over symbolic injuries." Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 193 (1992).
273. See 542 U.S. 1, 17 (2004).
274. Id. at 39 (O'Connor, J., concurring). Justice O'Connor also cited the observation, made in Lynch, that the display in question there had "caused no political divisiveness." See id. at 38 (quoting Lynch v. Donnelly, 465 U.S. 668, 692-93 (1984)). The question of the Pledge's "divisiveness" was also, as has already been noted, a topic on which Chief Justice Rehnquist and Mr. Newdow exchanged views during oral argument. See supra note 68 and accompanying text.
275. This notwithstanding the fact that the "coercion" test is framed and regarded as departing in significant and important ways from the concerns animating the "endorsement" test. Compare Allegheny, 492 U.S. at 627-28 (O'Connor, J., concurring) (stating that the "coercion" test, as opposed to the "endorsement" test, "fails to take account of the numerous more subtle ways that government can show favoritism to particular beliefs or convey a message of disapproval to others"), with id. at 668-79 (Kennedy, J., concurring in part and dissenting in part) (arguing that the "endorsement" test is unworkable in practice, and requires the Court to "act as a censor, issuing national decrees as to what is orthodox and what is not").
276. See 505 U.S. 577, 580 (1992) ("The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment . . . .").
277. See id. at 587.
278. Id.
279. Id. at 599.
280. See, e.g., id. at 587 ("The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent.").
281. See, e.g., id. at 597-98 ("We know too that sometimes to endure social isolation or even anger may be the price of conscience or nonconformity. But, by any reading of our cases, the conformity required by the student in this case was too high an exaction to withstand the test of the Establishment Clause."); id. at 596 ("To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where we have said the risk of compulsion is especially high."). The Argument's work here is "subtle" in the sense that Justice Kennedy is concerned that the cost to a student of protecting her conscience or of avoiding pressures to conform is that she "must remain apart from the ceremony" - that she must, in a sense, be divided and separated from the community by government-sponsored religious activity.
282. See, e.g., id. at 587-88 ("Divisiveness, of course, can attend any state decision respecting religions, and neither its existence nor its potential necessarily invalidates the State's attempts to accommodate religion in all cases."); id. at 597 ("We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive.").
283. See, e.g., id. at 590-91 ("To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse toward the end of a tolerant citizenry. And tolerance presupposes some mutuality of obligation . . . . Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief, formal prayer ceremony that the school offers in return.").
284. See id. at 592. This reliance on "perceptions" might come as a surprise, given that the "coercion" test is offered as, among other things, an alternative to the "endorsement" test.
285. See id. at 593-96; cf. id. at 632 (Scalia, J., dissenting) (describing the majority's test of "psychological coercion" as "its instrument of destruction, the bulldozer of its social engineering . . . a boundless, and boundlessly manipulable, test of psychological coercion"). Another, more recent, school-prayer case also connects the "no coercion" rule with concerns about "divisiveness." In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the Court reviewed a Texas public high school's practice of electing a student council chaplain to lead public prayer before home football games. The Court disapproved the practice, stating among other things that "the realities of the situation plainly reveal . . . both perceived and actual endorsement of religion." Id. at 305. In addition, though, the majority offered as a justification for embracing a facial challenge to the policy the belief that the election system "encourages divisiveness along religious lines and threatens the imposition of coercion upon those students not desiring to participate in a religious exercise." Id. at 317; see also id. at 311 ("The mechanism encourages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause."). It is worth noting that while Justices had expressed in the earlier school-aid cases a fear that state action concerning schools would cause political division along religious lines, here the focus has shifted to "divisiveness along religious lines" in the "public school setting." Id.
286. Lee, 505 U.S. at 604 (Blackmun, J., concurring).
287. Id. at 606-07 (quoting Engel v. Vitale, 370 U.S. 421, 429 (1962)).
288. Id. at 607 (quoting Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 694 (1970)). In his separate opinion, Justice Souter hinted at a similar theme. See id. at 617-18 (Souter, J., concurring) ("We have not changed much since the days of Madison, and the judiciary should not willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes.").
289. See id. at 607 & n.10 ("Religion has not lost its power to engender divisiveness."). Justice Blackmun quoted the lawyer's report that "[o]f all the issues the ACLU takes on . . . [a]side from our efforts to abolish the death penalty, [school prayer] is the only issue that elicits death threats." Id. To this claim, Justice Scalia responded in dissent: "The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration - no, an affection - for one another than voluntarily joining in prayer together, to the God whom they all worship and seek." Id. at 646 (Scalia, J., dissenting).
290. See id. at 607 (Blackmun, J., concurring) ("Democracy requires the nourishment of dialog and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation. When the government appropriates religious truth, it 'transforms rational debate into theological decree.' Those who disagree no longer are questioning the policy judgment of the elected but the rules of a higher authority who is beyond reproach."); id. at 608 ("Democratic government will not last long when proclamation replaces persuasion as the medium of political exchange."). In other words, the influence of "religion" is divisive because religion is unreasoning. Democracy must be policed so as to remain the realm of "persuasion." See, e.g., Wolman v. Walter, 433 U.S. 229, 264 (Stevens, J., concurring in part and dissenting in part) (quoting Clarence Darrow's claim that "[t]he realm of religion . . . is where knowledge leaves off, and where faith begins"). In his separate opinion, Justice Souter hinted at a similar theme. See Lee, 505 U.S. at 617-18 ("We have not changed much since the days of Madison, and the judiciary should not willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes.").
291. 512 U.S. 687 (1994).
292. Id. at 690. Governor Cuomo remarked, when he signed the bill creating the district, that it was "'a good faith effort to solve th[e] unique problem' associated with providing special education services to handicapped children in the village." Id. at 693.
293. See id. at 690; see also id. at 696 (stating that the law creating the school district "departs from [the First Amendment's 'neutrality' command] by delegating the State's discretionary authority over public schools to a group defined by its character as a religious community, in a legal and historical context that gives no assurance that governmental power has been or will be exercised neutrally."); id. at 696-708 (analyzing the district in light of Larkin). But see id. at 746 (Scalia, J., dissenting) (criticizing Justice Souter's reading of Larkin). It was only the school district, and not the Village itself - even though the district followed the Village's lines - that was invalidated. And, the "boundaries of the village of Kiryas Joel were drawn to include just the 320 acres owned and inhabited entirely by Satmars." Id. at 691. Note also that the impetus for the creation of the school district was the Court's decisions in Aguilar and Ball, which cast doubt on the validity of earlier efforts to provide special-education services to Satmar children attending religious schools. See id. at 692; id. at 730-31 (Kennedy, J., concurring).
294. Id. at 697. Justice Blackmun wrote separately to "note my disagreement with any suggestion that today's decision signals a departure from the principles described in [Lemon]." Id. at 710 (Blackmun, J., concurring). He also insisted that the Court's analysis was functionally similar to an application of Lemon's "effect" and "entanglement" prongs. See id. at 710. Justice O'Connor, however, welcomed the Court's lack of emphasis on Lemon. See id. at 718 (O'Connor, J., concurring in part and concurring in the judgment) ("[S]etting forth a unitary test for a broad set of cases may sometimes do more harm than good."); id. at 721 ("[T]he case law will better be able to evolve towards [a unified test] if it is freed from the Lemon test's rigid influence."); see also id. at 750 (Scalia, J., dissenting) (referring to the Court's "snub of Lemon").
295. Id. at 691 (majority opinion).
296. Id. at 704.
297. Id. at 703. But see id. at 722 (Kennedy, J., concurring) ("This rationale seems to me without grounding in our precedents and a needless restriction upon the legislature's ability to respond to the unique problems of a particular religious group."); id. at 726 ("No party has adduced any evidence that the legislature has denied another religious community like the Satmars its own school district under analogous circumstances.").
298. See id. at 711-12 (Stevens, J., concurring)
299. Cf. id. at 716 (O'Connor, J., concurring) (stating that the law creating the district "singles out a particular religious group for favorable treatment" and was not a "general accommodation").
300. Id. at 711 (Stevens, J., concurring). But see id. at 749 (Scalia, J., dissenting) ("Justice Stevens' statement is less a legal analysis than a manifesto of secularism. It surpasses mere rejection of accommodation, and announces a positive hostility to religion - which, unlike all other noncriminal values, the State must not assist parents in transmitting to their children.").
301. Id. at 711 (Stevens, J., concurring) (describing the law as one that "provided official support to cement the attachment of young adherents to a particular faith").
302. See id. at 728 (Kennedy, J., concurring).
303. Id. at 728-29 (quoting Wright v. Rockefeller, 376 U.S. 52, 67 (1964) (Douglas, J., dissenting)); see also id. (noting that a "fundamental limitation" imposed by the Establishment Clause is that "government may not use religion as a criterion to draw political or electoral lines"); id. ("[T]he Establishment Clause forbids the government to use religion as a line-drawing criterion."); id. at 732 ("The Establishment Clause forbids the government to draw political boundaries on the basis of religious faith."). For Justice Kennedy, the "lines" or divisions in question have the advantage of being more concrete than those presumed or invoked by, say, Chief Justice Burger in Lemon. Note the tension between this proclamation and Justice Kennedy's observation that "[p]eople who share a common religious belief or lifestyle may live together without sacrificing the basic rights of self-governance that all American citizens enjoy[.]" Id. at 730.
304. Id. at 730 (Kennedy, J., concurring).
305. For only a few of many, see, for example, Am. Family Ass'n, Inc., v. City of San Francisco, 277 F.3d 1114 (9th Cir. 2002); Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462 (5th Cir. 2001); Ehlers-Renzi v. Connelly Sch. of the Holy Child, Inc., 224 F.3d 283 (4th Cir. 2000); ACLU of New Jersey ex rel. Lander v. Schundler, 168 F.3d 92 (3d. Cir. 1999).
306. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004); Zelman v. Simmons-Harris, 536 U.S. 639, 717 (2002) (Breyer, J., dissenting).
307. Transcript of Oral Argument, supra note 68, at 43.
308. See, e.g., CAL. CIV. CODE § 3533 (West 2004). See generally Jeff Nemerofsky, What Is a "Trifle" Anyway?, 37 GONZ. L. REV. 315 (2001-2002).
309. Transcript of Oral Argument, supra note 68, at 43.
310. Van Orden v. Perry, 125 S. Ct. 2854, 2868 (2005) (Breyer, J., concurring in the judgment); McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (Souter, J., joined by Stevens, O'Connor, Ginsburg, and Breyer, JJ.)
311. According to a news report, the number of separate opinions in Van Orden and McCreary County prompted Chief Justice Rehnquist to quip, "I didn't know we had that many people on our Court." See Linda Greenhouse, Justices Allow a Commandments Display, Bar Others, N.Y. TIMES, June 28, 2005, at A6.
312. See McCreary, 125 S. Ct. at 2722.
313. See Van Orden, 125 S. Ct. at 2854; see also id. at 2864 ("The inclusion of the Ten Commandments monument in this group [of monuments on the Capitol grounds] has a dual significance, partaking of both religion and government.").
314. McCreary, 125 S. Ct. at 2733 (quoting Zelman v. Simmons-Harris, 536 U.S. 639, 718 (2002))
315. Id. at 2742.
316. Id.; see also id. at 2745 ("We are centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.").
317. Id. at 2746 (O'Connor, J., concurring); see also id. at 2747 ("Allowing government to be a potential mouthpiece for competing religious ideas risk the sort of division that might easily spill over into suppression of rival beliefs.").
318. Van Orden, 125 S. Ct. at 2868 (Breyer, J., concurring); cf., e.g., Lemon, 413 U.S. at 622 ("The potential divisiveness of such conflict is a threat to the normal political process.").
319. Id.; see also id. at 2869 ("I see no test-related substitute for the exercise of legal judgment.").
320. Id. at 2871. For Justice Breyer, this conclusion was supported by the fact that "[t]his display has stood apparently uncontested for nearly two generations." Id. Justice Breyer's conclusion that the Texas monument was not so divisive as to require invalidation prompted Justice Souter to quip, "I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause." Id. at 2897 (Souter, J., dissenting).
321. See id. at 2871 (Breyer, J., concurring).
322. Cf., e.g., Mellen v. Bunting, 341 F.3d 312, 324 (4th Cir. 2003) (Wilkinson, J., dissenting from denial of rehearing en banc) ("There is a danger that in overturning long and widely accepted accommodations, courts will divide a community, rather than unite it. A primary aim of the Establishment Clause is to prevent divisiveness over matters of religion."); Utah Gospel Mission v. Salt Lake City Corp., 316 F. Supp. 2d 1201, 1238, 1240 (D. Utah 2001) (rejecting argument that City violated the First Amendment by selling a pedestrian easement in the Main Street Plaza to the Church of Jesus Christ of Latter Day Saints, noting that the City's desire to "bring[] an end to the divisiveness in the community" and "put[ting] to rest an extremely divisive issue" were valid "secular purposes").
323. See Van Orden, 125 S. Ct. at 2871 (Breyer, J., concurring) ("This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive.").
324. See NOWAK & ROTUNDA, supra note 116, at 1193 (noting that the Argument has done very little real "work," but has instead served only "to reinforce the conclusions of the Court"). In similar fashion, Professor Tribe noted that although "the Court has not yet delineated this inquiry's independent power," it has "emphasized divisiveness as a factor in striking down various programs, particularly aid to parochial schools." LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-14, at 1278 (1988). What's more, "the Court has specifically declined to hold that the threat of divisiveness is alone sufficient to strike a program down." Id. (citing Lynch v. Donnelly, 465 U.S. 668, 684 (1984) ("The Court of Appeals correctly observed that this Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct.")).
325. Cf. TRIBE, supra note 265, at 1278 n.19 ("[T]he Court has suggested that state aid to parochial schools possesses a uniquely divisive potential."); id. at 1278 ("[T]he Court has suggested that the inquiry applies only in a limited set of cases.").
326. Gaffney, supra note 100, at 206; see also, e.g., GERARD V. BRADLEY, CHURCH-STATE RELATIONSHIPS IN AMERICA 4-9 (1987);
327. Ripple, supra note 119, at 1219-24; Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. PA. L. REV. 149, 207-10 (1991).
328. TRIBE, supra note 265, at 1276. Professor Tribe also grouped the "political divisiveness inquiry" with the Court's "secular purpose" test as two doctrines "suggesting that, when religious believers arrive at political debates, they must check their beliefs at the door or risk losing their efficacy." Id. at 1277-78.
329. Id. at 1280.
330. See, e.g., PERRY, supra note 70, at 40-41 ("[R]eligiously grounded moral discourse is not necessarily more sectarian than secular moral discourse."); id. at 154-55 n.11 ("American history does not suggest that debates about religious (theological) issues are invariably more divisive than debates about political issues."); Frederick Mark Gedicks, An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions, 20 U. ARK. LITTLE ROCK L.J. 555, 563-64 (1998) ("There is nothing about religious belief and practice in contemporary America that is uniquely disruptive of the social order.");
331. Philip E. Johnson, Concepts and Compromise in First Amendment Religious Doctrine, 72 CAL. L. REV. 817, 830 (1984) (describing as "problematic" the "factual assumption" that "religious disputes and religious people are particularly contentious");
332. Michael Stokes Paulsen, God Is Great, Garvey Is Good: Making Sense of Religious Freedom, 72 NOTRE DAME L. REV. 1597, 1608 (1997) ("[I]f political peace is the goal, the religion clauses are not at all well tailored to achieve it. They are radically underinclusive in the subjects of possible divisiveness that they cover."); Smith, supra note 14, at 1248 (noting the objection that "religion has been no more generative of conflict in modern America than various other issues and movements"); cf. Marshall, supra note 24, at 859 n.80 (noting that "religion's unique relationship to one of humanity's deepest fears suggests that it possesses an inherent volatility that secular ideologies do not").
333. See, e.g., NOWAK & ROTUNDA, supra note 116, at 1193 ("If the political divisiveness test is in fact being used by the majority to ban religious conflict, the attempt would appear to be futile at best."); TRIBE, supra note 265, at 1281 ("[S]ome degree of division is inevitable . . . .").
334. NOWAK & ROTUNDA, supra note 116, at 1194. See also Berg, supra note 31, at 192 ("Currently, considerable political and social strife stems from the denial of educational choice . . . ."); Johnson, supra note 270, at 830 ("One sure way to encourage conflict . . . is to encourage people to think that what seem to be minor irritations are in reality violations of some sacred principle for which they have a duty to fight."); Lupu & Tuttle, supra note 31, at 954 (suggesting that Justice Breyer's position and opinion in Zelman is "a cause, not a cure, of social strife"); Smith, supra note 14, at 1248 ("[I]t is not clear that any particular constitutional provision on this subject is well calculated to eliminate contention: excluding religion from some area of the public domain can be as controversial as including it."). Justice Breyer's concurring opinion in Van Orden recognized as much. See Van Orden v. Perry, 125 S. Ct. 2854, 2871 (2005) (Breyer, J., concurring). Cf., e.g., Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 192-93 (1992) (criticizing the "endorsement approach" to Establishment Clause questions because "it exacerbates religious division and discord by heightening the sense of grievance over symbolic injuries" (emphasis added)).
335. See, e.g., FELDMAN, supra note 9, at 222-27; PERRY, supra note 70, at 32-33; PAUL J. WEITHMAN, RELIGION AND THE OBLIGATIONS OF CITIZENSHIP 121-47 (2002).
336. TRIBE, supra note 265, at 1279.
337. Id. (citing judicial criticisms of the inquiry); see also, e.g., Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 YALE L.J. 692, 716 (1968) (questioning whether the state's conceded "interest" in "secular unity" makes maintaining such unity an enforceable "constitutional requirement").
338. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 684 (1984) ("[T]his Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct.").
339. Cf., e.g., Lemon v. Kurtzman, 403 U.S. 602, 622 ("Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government . . . ."); Freund, supra note 97, at 1692 ("[P]olitical debate and division is normally a wholesome process for reaching viable accommodations . . . .").
340. JEREMY WALDRON, LAW AND DISAGREEMENT 15 (1999); see also, e.g., PERRY, supra note 70, at 21 ("[W]e are perennially divided about the proper role of religious grounded morality in our politics. This is due in substantial part, no doubt, to the fact that we are perennial divided in our judgments about a host of important moral issues - and about a host of connected political issues.").
341. See, e.g., Steven D. Shiffrin, The Pluralistic Foundations of the Religion Clauses, 90 CORNELL L. REV. 9, 40 (2004) ("Religious wars have plagued the world for many centuries. . . . Nonetheless, it goes too far to suggest that that a significant purpose of the Establishment Clause is to assure that the polity is not divided politically along religious lines.") Indeed, there is reason to think that the contrary is true; that is, that government policies and state action motivated by a dislike for disagreement are, for that reason, suspect. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 288 n.9 (2004) (plurality opinion) (insisting that "[t]he Constitution . . . does not share appellants' alarm at the asserted tendency of partisan gerrymandering" to produce "hard-core Democrats" rather than "wishy-washy Democrats"); California Democratic Party v. Jones, 530 U.S. 567, 582 (2000) (noting the "inadmissibility" of an alleged state interest in "producing nominees and nominee positions other than those the [political] parties would choose if left to their own devices"); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 578 (1995) (rejecting asserted state interest in "requir[ing] speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own").
342. Schwarz, supra note 275, at 711.
343. WALDRON, supra note 278, at 1.
344. See generally Steven D. Smith, The "Secular, " the "Religious," and the "Moral": What Are We Talking About?, 36 WAKE FOREST L. REV. 487 (2001) [hereinafter Smith, Secular] (examining and challenging "the categories and distinctions that pervade the modern discourse of religious freedom - distinctions between the "religious" and the "secular" and between "religion" and "morality");
345. Steven D. Smith, Separation and the "Secular": Reconstructing the Disestablishment Decision, 67 TEX. L. REV. 955, 1009-10 (1989);
346. Christine L. Niles, Note, Epistemological Nonsense? The Secular/Religious Distinction, 17 NOTRE DAME J.L. ETHICS & PUB. POL'Y 561, 562 (2003) (contending that "no coherent line separates the 'secular' from the 'religious'").
347. See, e.g., Koppelman, supra note 39; see also KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE 90-91 (1988) ("A liberal society . . . has no business dictating matters of religious belief and worship to its citizens."). Professor Lupu has explained how the secular-purpose requirement helps us to avoid "the political hazards of sectarian religious conflict."
348. Ira C. Lupu, To Control Faction and Protect Liberty: A General Theory of the Religion Clauses, 7 J. CONTEMP. LEGAL ISSUES 357, 368 (1996).
349. See, e.g., TRIBE, supra note 265, at 1226, 1231; EUGENE VOLOKH, THE FIRST AMENDMENT: PROBLEMS, CASES, AND POLICY ARGUMENTS 826-40 (2001).
350. But see, e.g., Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 77 (Cal. 2004) (upholding California's law requiring all employers within the state to provide contraceptive coverage to their employees in the face of the argument that an organization describing itself as "an organ of the Roman Catholic Church" should be exempt from a law requiring conduct violative of Catholic moral teaching).
351. Lemon v. Kurtzman, 403 U.S. 602, 625 ("[T]he Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice . . . .").
352. See, e.g., Smith, Secular, supra note 282, at 500 (discussing, among other things, the "ontotheological synthesis").
353. McDaniel v. Paty, 435 U.S. 618, 640 (1978) (Brennan, J., concurring).
354. But see, e.g., Lemon, 403 U.S. at 623 ("It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government.").
355. Van Orden v. Perry, 125 S. Ct. 2854, 2868 (2005) (Breyer, J., concurring).
356. Professor Perry put the matter well: "If Policy X 'establishes' religion, Policy X is probably divisive along religious lines. But that Policy Y is divisive along religious lines does not entail that Policy Y 'establishes' religion." E-mail from Michael Perry, Associate Dean and Professor of Law, Emory Law School, to Richard Garnett, Associate Professor of Law, Notre Dame Law School (Nov. 27, 2005) (on file with author).
357. See McDaniel, 435 U.S. at 642 (Brennan, J., concurring) ("[The Establishment Clause's] prohibitions naturally tend, as they were designed to, to avoid channeling political activity along religious lines and to reduce any tendency toward religious divisiveness in society. Beyond enforcing these prohibitions, however, government may not go. The antidote which the Constitution provides against zealots who would inject sectarianism into the political process is to subject their ideas to refutation in the marketplace of ideas, and their platforms to rejection at the polls.").
358. See, e.g., STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM (1995);
359. Steven D. Smith, The Jurisdictional Establishment Clause: A Reappraisal, 81 NOTRE DAME L. REV. (forthcoming 2006).
360. See Michael W. McConnell, The Problem of Singling Out Religion, 50 DEPAUL L. REV. 1, 3 (2000) ("[I]t is virtually impossible to understand our tradition of the separation of church and state without recognizing that religion raises political and constitutional issues not raised by other institutions or ideologies.").
361. It is widely accepted, for instance, that governments may accommodate, without unconstitutionally establishing, religion. See, e.g., Cutter v. Wilkinson, 125 S. Ct. 2113, 2121 (2005) (rejecting Establishment Clause challenge to Religious Land Use and Institutionalized Persons Act provisions accommodating religious exercise in prison). See generally McConnell, supra note 294, at 3 ("My thesis is that 'singling out religion' for special constitutional protection is fully consistent with our constitutional tradition.").
362. See Shari Seidman Diamond & Andrew Koppelman, Measured Endorsement, 60 MD. L. REV. 713, 716 (2001) (proposing an empirical method for determining whether the government has violated the Establishment Clause by endorsing religion).
363. Compare Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 765-69 (1995) (insisting that "erroneous conclusions of state endorsement . . . do not count" against the constitutionality of permitting private religious expression in an open forum), with id. at 778-82 (O'Connor, J., concurring) (noting that a "reasonable observer" should be aware of the history and context of a public park where diverse groups engage in expressive conduct, and therefore should not perceive the display of a cross by a private speaker as government "endorsement" of religion), and id. at 807-12 (Stevens, J., dissenting) (arguing that a "reasonable observer" should not be presumed to have detailed knowledge of the history of the relevant forum, and that the "endorsement test" should take more seriously the perspective of dissenters and outsiders).
364. Cf. FELDMAN, supra note 9, at 238-44 (arguing that one "way toward greater national unity in the face of our religious diversity" is for "legal secularists" to appreciate that "so long as all citizens have the same right to [speak as individuals or as groups], no one group or person should be threatened or excluded by the symbolic or political speech of others, much as they may disagree").
365. Cf. Marty, supra note 87, at 655 ("[R]eligion, when vital, is never easily contained within a defined and disciplined sphere. Religion is never self-contained, never unconnected. It always stands the potential of being 'widened.'"). But see, e.g., Mellen v. Bunting, 341 F.3d 312, 322 (4th Cir. 2003) (Wilkinson, J., dissenting from denial of rehearing en banc) ("Religious expression can be divisive, but it need not be so. The disparate strands of belief can come together in a broader unity much as streams unite into a river.").
366. Cf. FELDMAN, supra note 9, at 245 (asserting that school vouchers "create[] conflict and division"); Freund, supra note 97, at 1692 ("Although great issues of constitutional law are never settled until they are settled right, still as between open-ended, ongoing political warfare and such binding quality as judicial decisions possess, I would choose the latter in the field of God and Caesar and the public treasury.").
367. See supra note 295.
368. Chief Justice Rehnquist's own trimmed-down version of the Argument - in which its applicability is confined strictly to cases concerning public funds and parochial schools - is not unlike this version. See Mueller v. Allen, 463 U.S. 308, 404 n.11 (1983) (stating that the question of "political divisiveness" should be "regarded as confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools").
369. Smith, supra note 267, at 208 (emphasis added).
370. Michael W. McConnell, Political and Religious Disestablishment, 1986 BYU L. REV. 405, 413.
371. Of course, one might just as well add, to this formulation, "or oppose it."
372. See generally JOHN RAWLS, POLITICAL LIBERALISM 212-54 (1993) (defending an ethos of "public reason" that requires, inter alia, that arguments about public policy be couched in terms that are "accessible" to all citizens and that do not presuppose adherence to any religion or other "comprehensive" philosophy);
373. William Marshall, The Other Side of Religion, 44 HASTINGS L.J. 843, 844 (1993) (contending that "religion and religious conviction are purely private matters that have no role or place" in the political arena).
374. See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). More recently, of course, the Court invalidated the Ten Commandments display at issue in McCreary County on the ground that it lacked a "secular purpose." See McCreary County v. ACLU, 125 S. Ct. 2722, 2735-36 (2005). And, Justice Souter explicitly linked the secular-purpose inquiry with judicial concerns about, and perhaps a constitutional duty to avoid, religious divisiveness. See id. at 2742-43.
375. 482 U.S. 578 (1987).
376. Id. at 584 (quoting Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 231 (1948) (opinion of Frankfurter, J.)); see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 131 (2001) (Stevens, J., dissenting) ("Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school's educational mission.").
377. Edwards, 482 U.S. at 585; see also id. ("The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion.") (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring)).
378. Koppelman, supra note 39, at 88.
379. Id. at 89. For a more detailed discussion of this point, see, for example, Richard W. Garnett, Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine, 51 UCLA L. REV. 1645 (2004).
380. See also Steven D. Smith, Barnette's Big Blunder, 78 CHI.-KENT L. REV. 625 (2003).
381. See Koppelman, supra note 39, at 93.
382. Id. at 166 ("[T]he case for the secular purpose requirement goes beyond the purposes of the Establishment Clause. Religious justification is a powerful thing. If there were no restraints on the ability of the state to rely on such justifications, then the state could invoke such justifications whenever it wanted to override any constitutional constraint. Such justifications are by their nature so powerful as to override any countervailing constraint, for what could be more important than carrying out the will of God?").
383. See generally, e.g., Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should be Excluded from Democratic Deliberation, 1999 UTAH L. REV. 639, 644-48 (arguing that the "principle of secular rationale" is "inconsistent with the American constitutional tradition").
384. U.S. CONST. amend. I.
385. See generally PERRY, supra note 70, at 20-34.
386. For a small, but still representative, sampling of the legal and political-theory literature on this issue, see, for example, GREENAWALT, supra note 283; RELIGION AND CONTEMPORARY LIBERALISM (Paul J. Weithman ed., 1997);
387. ROBERT AUDI & NICHOLAS WOLTERSTORFF, RELIGION IN THE PUBLIC SQUARE (1997);
388. Symposium, Religion in the Public Square, 42 WM. & MARY L. REV. 647 (2001);
389. Symposium, Religiously Based Morality: Its Proper Place in American Law and Public Policy?, 36 WAKE FOREST L. REV. 217 (2001);
390. Symposium, The Role of Religion in Public Debate in Liberal Society, SAN DIEGO L. REV. 643 (1993).
391. As the discussion in Part II illustrated, Justice Powell's use of the argument from division appears tightly connected to his concerns for the stability of the political process, and his belief that arguments cast in religious language, or concerning certain matters, posed special risks to that process.
392. See, e.g., Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 130 (1992) ("[T]he political victories of either side in [political] controversies could be divisive; but the doctrine did not - and could not - work both ways. In effect, the doctrine blamed the religious side of any controversy for the controversy.").
393. Sullivan, supra note 39, at 198; cf. CASS SUNSTEIN, THE PARTIAL CONSTITUTION 307 (1999) (contending that the Constitution set up "a secular, liberal democracy in a way that is intended to minimize religious tension");
394. Stephen Macedo, Constituting Civil Society: School Vouchers, Religious Nonprofit Organizations, and Liberal Public Values, 75 CHI.-KENT L. REV. 417, 426 (2000) ("[T]he Constitution was designed to undermine the political influence of narrow and insular forms of zealotry.").
395. Just as earlier versions of the Argument ran up against the problem of distinguishing between "religious" and other subject matters, this version invites the question, "What are 'religious lines'?" Are the "lines" that we do not want our political splits to overlay the lines between the irreligious and the religious? Among Christian denominations? Between the orthodox and the latitudinarian? And so on.
396. See TRIBE, supra note 265, at 1282 (stating that division should serve as a "warning signal[], suggesting stricter judicial scrutiny but not serving to condemn what government has done"); see also Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 797-98 (1973) ("[W]hile the prospect of such divisiveness may not alone warrant the invalidation of state laws that otherwise survive the careful scrutiny required by the decisions of this Court, it is certainly a 'warning signal' not to be ignored." (quoting Lemon v. Kurtzmann, 403 U.S. 602, 625 (1971))). Professors Larry Solum and Larry Alexander made a similar point when I presented this Article at the University of San Diego Law School's faculty workshop.
397. See Lemon, 403 U.S. at 624-25. Chief Justice Burger contended that entanglement between government and religion is both an "independent evil against which the Religion Clauses were intended to protect" and a "warning signal" that further evils are menacing.
398. Justice Scalia made a similar point, regarding the term "corruption," dissenting in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 684 (1990) ("[V]irtually anything the Court deems politically undesirable can be turned into political corruption - by simply describing its effects as politically 'corrosive,' which is close enough to 'corruptive' to qualify."). See also Christopher Hitchens, Bring on the Mud, WILSON Q., Autumn 2004, at 44, 44 ("What's the most reprehensible thing a politician can be these days? Why, partisan, of course. What's the most disapproving thing that can be said of a 'partisan' remark? That it's divisive.").
399. Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 695 (1970) (Harlan, J., concurring).
400. THE FEDERALIST No. 10, at 77 (James Madison) (Clinton Rossiter ed., 1961).
401. Id.; see also Sullivan, supra note 20, at 6 ("The U.S. Constitution was devised not as a means to avoid social and cultural polarization, but as a way to manage it without splitting the country apart.").
402. See AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 360 (1996) (noting that "[m]any theorists of democracy refuse to face up to [the] moral fact of political life" that, "given the intractable sources of disagreement, citizens cannot expect to reach mutually justifiable agreement over the whole range of significant issues in politics").
403. THE FEDERALIST No. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961); see also Sch. Dist. v. Schempp, 374 U.S. 203, 240 n.8 (1963) (Brennan, J., concurring) ("Madison suggested in the Fifty-first Federalist that the religious diversity which existed at the time of the Constitutional Convention constituted a source of strength for religious freedom, much as the multiplicity of economic and political interests enhanced the security of other civil rights.").