Nonincorporation of the establishment clause: Satisfying the demands of equality, pluralism, and originalism

Georgetown Law Journal

Volumn 98, Issue 2, 2010, Pages 459-502

  Doshi, Rupal M ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77749254938     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (339)

1. N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
2. Justices on the Court have embraced at least the following standards to resolving establishment disputes: (1) three-pronged Lemon test, Lemon v. Kurtzman, 403 U.S. 602 (1971);
3. Justice O'Connor's endorsement test, Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring);
4. Justice Kennedy's broad coercion test, Lee v. Weisman, 505 U.S. 577 (1992);
5. Justice Scalia's narrow coercion analysis, id. at 640 (Scalia, J., dissenting); (5) formal neutrality with respect to religion, Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002);
6. substantive neutrality with respect to sectarian goals, Mitchell v. Helms, 530 U.S. 793, 837-40 (2000) (O'Connor, J., concurring in the judgment);
7. Justice Thomas's disincorporation theory, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 50-51 (2004) (Thomas, J., concurring in the judgment);
8. Chief Justice Rehnquist's nonpreferentialism, Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist C.J., dissenting);
9. historical practice test, Marsh v. Chambers, 463 U.S. 783, 801-02 (1983) (Brennan, J., dissenting);
10. equality approach, Fowler v. Rhode Island, 345 U.S. 67 (1953).
11. See McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844 (2005).
12. See Van Orden v. Perry, 545 U.S. 677 (2005).
13. See 536 U.S. 639 (2002).
14. See 540 U.S. 712 (2004).
15. See Everson v. Bd. of Educ., 330 U.S. 1 (1947).
16. See Wolman v. Walter, 433 U.S. 229 (1977), rev'd on other grounds, Mitchell v. Helms, 530 U.S. 793 (2000).
17. See 463 U.S. 388 (1983).
18. See 413 U.S. 756 (1973).
19. See Ill. ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948).
20. See Zorach v. Clauson, 343 U.S. 306 (1952).
21. See, e.g., Mellen v. Bunting, 327 F.3d 355, 370 (4th Cir. 2003) (applying a modified version of the Lemon, coercion, and endorsement tests to strike down the hosting of a daily supper prayer at a state-operated military college);
22. ACLU of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 306 (6th Cir. 2001) (upholding a state motto invoking "God" under three different establishment tests - the Lemon, endorsement, and Marsh tests - because it was unclear which test the Supreme Court would apply).
23. See infra note 36 and accompanying text.
24. Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 120 (1992).
25. The Court's Religion Clause jurisprudence has also been prominently characterized, by scholars and jurists alike, as "unprincipled, incoherent, and unworkable." See, e.g., Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 477, 478 (1991);
26. see also Wallace v. Jaffree, 472 U.S. 38, 106 (Rehnquist, J., dissenting) ("[I]n the 38 years since Everson our Establishment Clause cases have been neither principled nor unified.").
27. See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (incorporating the Establishment Clause via the Fourteenth Amendment).
28. U.S. CONST. amend. I.
29. See infra section I.A. For a brief discussion of the original intent of the Framers, see Kurt T. Lash, Power and the Subject of Religion, 59 OHIO ST. L.J. 1069, 1099-1100 (1998).
30. 551 U.S. 587 (2007).
31. See id. Justice Alito issued the judgment of the Court; the case produced no majority opinion. It has been suggested that the Court's approach to taxpayer standing in Hein may be extended to other areas of Establishment jurisprudence, such as challenges to government religious speech (for example, religious displays) where the plaintiff's injury rests entirely on his "observer" status. The consequence of such an extension would be to leave more to local politics and less for the federal courts to decide. See Ira C. Lupu & Robert W. Tuttle, Ball on a Needle: Hein v. Freedom from Religion Foundation, Inc. and the Future of Establishment Clause Adjudication, 2008 BYU L. REV. 115, 158.
32. For an example of a Court of Appeals applying the Hein analysis to deny a plaintiff standing in a school-sponsored prayer case, see Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494 (5th Cir. 2007).
33. Everson, 330 U.S. at 15 ("The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church." (emphasis added)).
34. For two leading works espousing the view that the Establishment Clause was never intended to create strict separation between religion and government, nor was it intended to apply to the states, see ROBERT L. CORD, SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION 15 (1982)
35. and MARK DEWOLFE HOWE, THE GARDEN AND THE WILDERNESS: RELIGION AND GOVERNMENT IN AMERICAN CONSTITUTIONAL HISTORY 23-27 (1965).
36. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J., concurring).
37. For a compelling defense of the originalist analysis, see Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971).
38. See also Michael W McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1413-15 (1990), for a defense of originalism as it relates to the Religion Clauses. Judge McConnell explains that "[e]ven opponents of originalism agree that the historical understanding is relevant even if not dispositive," to correct misconceptions. Id. at 1415.
39. See, e.g.. Van Orden v. Perry, 545 U.S. 677, 685 (2005) (recognizing the Establishment Clause analysis applied was "driven . . . by our Nation's history");
40. Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (regarding the interpretation of the Establishment Clause by the First Congress in 1789 with "special significance" and with the "greatest weight");
41. Marsh v. Chambers, 463 U.S. 783, 790 (1983) ("[H]istorical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress - their actions reveal their intent"). The historical analyses are not limited to the conservative Justices on the Court, either. Even Justice Souter, in a concurring opinion in Lee v. Weisman, was inclined to analyze the framing of the First Amendment to support his conclusion that "the Framers meant the Establishment Clause's prohibition to encompass nonpreferential aid to religion." 505 U.S. 577, 613-14 (1992) (Souter, J., concurring).
42. See discussion infra section I.A.
43. See discussion infra section I.B.
44. Decentralization of the Establishment Clause means devolving political power to local authorities to determine the extent of permissible government action or inaction. Spreading political authority over religious issues appropriately allows church-state relations to be determined on a local scale, which is generally where disputes over religious freedoms, such as the recitation of public prayer or display of religious symbols, arise. See Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. 1810, 1815 (2004).
45. See Peter G. Danchin, Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law, 33 YALE J. INT'L L. 1, 14-15 (2008).
46. Id.
47. See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 313 (1963) (Stewart, J., dissenting); infra section II.B.
48. See Will Kymlicka, Introduction, in THE RIGHTS OF MINORITY CULTURES 1, 11 (Will Kymlicka ed., Oxford Univ. Press 1995) ("[T]he United States has firmly adopted the [nondiscrimination approach] as its goal, and indeed it has had enormous success in integrating people of many different races and religions into its common culture."). This Note does not dispute that the nondiscrimination model has integrated religious groups, but this Note does dispute that this approach is the most desirable to achieve true pluralism after taking into consideration the minority religious groups the Framers also intended to protect.
49. See David E. Steinberg, God Versus Caesar: Belief, Worship, and Proselytizing Under the First Amendment, 16 J.L. & RELIGION 265, 265 (2001) (book review) (explaining that the "framers adopted the religion clauses primarily to end the persecution faced by eighteenth-century religious minorities, such as the Catholics, Baptists, and Quakers"). For historical evidence that the Framers adopted the Religion Clauses in part to protect nontraditional religious denominations, see McConnell, supra note 24, at 1440.
50. Consider the recent Supreme Court opinion upholding the display of the Ten Commandments on the grounds of a state capitol because it did not violate the Establishment Clause. See Van Orden v. Perry, 545 U.S. 677 (2005); see also Danchin, supra note 29, at 34 (explaining conception of 'liberal nationalism," in which state neutrality actually requires accommodation for the religion of the majority in public life). In Van Orden, the Court upheld the display under a historical approach to the Establishment Clause. 545 U.S. at 681. The plurality reasoned that although the Ten Commandments have religious significance, the symbol also has an "undeniable historical meaning," grounded in this country's Judeo-Christian traditions. Id. at 690. But this argument is circular: it is not as religious as other public acts because it is historic, but it has historic meaning because of this country's traditions. When approaching an Establishment Clause issue in this way, the solution will inevitably lie in the default position: majoritarian religious traditions.
51. See Danchin, supra note 29, at 36-37 (arguing that pluralism in the United States is based on individual rights, rather than collective rights).
52. See id. at 15.
53. For example, James Madison famously argued against state-supported religion in his Memorial and Remonstrance, which he drafted in opposition to a bill that would have levied a general assessment in support of religious teachers. Madison declared: "A just Government . . . will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect nor suffering any Sect to invade those of another." JAMES MADISON, Memorial and Remonstrance Against Religious Assessments (June 20, 1785),
54. reprinted in JAMES MADISON: WRITINGS 29, 33 (Jack N. Rakove ed., 1999).
55. Michael McConnell, a leading constitutional law scholar in the area of religion, argues that the original purpose of the Religion Clauses was to protect individual religious life from needless government intrusion in order to "foster a regime of religious pluralism, as distinguished from both majoritarianism and secularism." See McConnell, supra note 15, at 117. McConnell argues this is consistent with what Madison referred to as the "full and equal rights" of religious groups. Id. (quoting James Madison (speech of Jun. 8,1789), in 1 ANNALS OF CONG. 451 (Joseph Gales ed., 1834)).
56. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 34 (1988) (explaining that the Establishment Clause was a "pro-states' right" and "simply calls for the issue to be decided locally");
57. CORD, supra note 22; PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 3-6 (2002) (providing a historical analysis as to the original meaning of the Establishment Clause);
58. STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM 18 (1995) ("The religion clauses, as understood by those who drafted, proposed, and ratified them, were an exercise of federaUsm.");
59. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1157 (1991) ("[T]he Establishment Clause limited only Congress and not the states.");
60. Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 ARIZ. ST. L.J. 1085, 1089-92 (1995) (stating that the Establishment Clause was a federalism principle, intended only to prevent the federal government from interfering with state-established churches);
61. William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DEPAUL L. REV. 1191, 1191 (1990) (explaining that the Establishment Clause created a "framework of federalism" that left states to their own devices regarding religion);
62. Vincent Phillip Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation, 8 U. PA. J. CONST. L. 585 (2006) (assessing original meaning of Establishment Clause as adopted in the First Amendment and concluding the federalist conception of the clause is accurate).
63. But see Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346, 407-08 (2002) (arguing against the Federalist interpretation of the Establishment Clause due to the lack of historical support in the debates).
64. See McConnell, supra note 24, at 1484.
65. THE FEDERALIST NO. 51 (Alexander Hamilton or James Madison).
66. But see STORY'S COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, Vol 2., 630-32 (Melville M. Bigelow ed., Boston, Little, Brown, and Co. 1891) (1833). Joseph Story, a Supreme Court Justice and Harvard law professor, published one of the most comprehensive treatises on the United States Constitution, and certainly the most extensive treatise at the time. In his discussion of the meaning of the EstabUshment Clause, Story said: Probably at the time of the adoption of the Constitution, and of the [First Amendment]..., the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. Id.
67. See, e.g., MASS. CONST. of 1780, pt. 1, art. III. (providing for the right of citizens "to invest their legislature with power to authorize and require . . . the several towns . . . or religious societies to make suitable provision at their own expence . . . for the support and maintenance of public protestant teachers of piety, religion and morality"). The Constitution also provided all sects equal protection under the laws: "[E]very denomination of Christians . . . shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law." Id. Massachusetts, which disestablished by 1833, was the last state in the Union to have such a provision in its constitution. See Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. REV. 1385, 1458 (defining religious establishment as the authority to assess taxes for church support). Other states to maintain congregational establishments following the Revolution included several states in New England as well as Maryland, South Carolina, and Georgia. See McConnell, supra note 24, at 1437.
68. See Lietzau, supra note 37, at 1200 (observing that the only thing the Framers could agree upon was that matters of religion were properly left to the decisionmakers in state and local bodies).
69. AMAR, supra note 37, at 33. Professor Amar makes the point that the same "structural reasons that counsel caution in attempting to incorporate the Tenth Amendment against the states seem valid here, too." Id. at 34.
70. See id. at 41.
71. CORD, supra note 22, at 4.
72. See Barron v. Baltimore, 32 U.S. 243 (1833) (holding the Bill of Rights inapplicable to state and local governments). In Barron, the issue was the applicability of the Fifth Amendment's Takings Clause to state government. The Court affirmatively held that "[the first ten Amendments] demanded security against the apprehended encroachments of the general government - not against those of the local government." Id. at 250.
73. See STEVEN D. SMITH, GETTING OVER EQUALITY: A CRITICAL DIAGNOSIS OF RELIGIOUS FREEDOM IN AMERICA 21 (2001).
74. See Steven G. Gey, Reconciling the Supreme Court's Four Establishment Clauses, 8 U. PA. J. CONST. L. 725, 757 (2006).
75. This question is beyond the scope of this Note. This section will discuss the Framers' intentions with regard to the EstabUshment Clause only.
76. See Lash, supra note 37, at 1143-44 (discussing the intentions of the architects of the Fourteenth Amendment); Muñoz, supra note 37, at 633 (suggesting the relevant inquiry should consider the intentions of the drafters of the Fourteenth Amendment, not the Founding Fathers).
77. See, e.g., Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5, 81-126 (1949) (assessing whether the Fourteenth Amendment was intended to apply the Bill of Rights to the states).
78. See LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE 148 (2d ed. 1994) ("The preponderance of evidence suggests that the framers of the Fourteenth Amendment intended its provisions neither to incorporate any part of the Bill of Rights [including the Establishment Clause] nor to impose on the states the same limitations previously imposed on the United States only."); Muñoz, supra note 37, at 634 (explaining that the Framers of the Fourteenth Amendment did not address an individual "nonestablishment" right, but rather, only discussed the personal rights of "free exercise" or of "freedom of conscience"). But see Lash, supra note 37, at 1143-44 (arguing that the Framers of the Fourteenth Amendment did, in fact intend to incorporate the first eight amendments, including the Establishment Clause, under the "privileges or immunities" provision).
79. Palko v. Connecticut set forth the "incorporation" doctrine, holding that the "liberty" protected in the Due Process Clause of the Fourteenth Amendment guards "fundamental" rights that are "implicit in the concept of ordered liberty." 302 U.S. 319, 324-25 (1937). For example, the free exercise right of the First Amendment was incorporated by the Supreme Court in Cantwell v. Connecticut. 310 U.S. 296, 303 (1939).
80. See discussion infra section II.A.
81. The Clause reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . ." U.S. CONST. amend. XIV, § 1.
82. CONG. GLOBE, 42d Cong., 1st Sess. (1871), reprinted in RECONSTRUCTION AMENDMENTS' DEBATES, THE LEGISLATIVE HISTORY AND CONTEMPORARY DEBATES IN CONGRESS ON THE 13TH, 14TH, AND 15TH AMENDMENTS 510 (1967).
83. See, e.g.. Lash, supra note 37, at 1146 n.297.
84. See CONG. GLOBE, 39th Cong., 1st Sess. (1871), reprinted in RECONSTRUCTION AMENDMENTS' DEBATES, THE LEGISLATIVE HISTORY AND CONTEMPORARY DEBATES IN CONGRESS ON THE 13TH, 14TH, AND 15TH AMENDMENTS, supra note 56, at 511 (listing the injustices states have inflicted upon their citizens and stating, for example, "[t]hey restricted the rights of conscience, and he had no remedy"); see also id. at 475-76 (remarks of Henry Dawes) (Usting the "rights, privileges, and immunities" secured to all citizens by cataloging all of the rights protected in the first eight Amendments but leaving the Establishment Clause off of the list).
85. For an extensive analysis of the Blaine Amendment, see F. William O'Brien, The Blaine Amendment 1875-1876, 41 U. DET. L.J. 137, 195-205 (1963). The Blaine Amendment states in full: No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any reUgious sect, nor shall any money so raised or so devoted be divided between religious sects or denominations. H.R. Res. 1, 44th Cong. (1875).
86. See Muñoz, supra note 37, at 635 (stating that "[t]he Congress that debated [the Blaine Amendment] included twenty-three members of the Congress that had approved the Fourteenth Amendment, two members who had been on the committee that drafted the Fourteenth Amendment and more than fifty members who had served in the legislatures of the states that considered the Fourteenth Amendment in 1867 and 1868"); see also Lietzau, supra note 37, at 1209.
87. See Muñoz, supra note 37, at 634.
88. See Cochran v. La. Bd. of Educ., 281 U.S. 370, 375 (1930) (upholding state purchase of nonreligious school books for students in parochial schools);
89. Quick Bear v. Leupp, 210 U.S. 50, 82 (1908) (upholding payments to a Roman Catholic school on an Indian reservation);
90. Bradfield v. Roberts, 175 U.S. 291, 299-300 (1899) (upholding congressional payments to benefit the poor at a religious District of Columbia hospital).
91. Everson v. Bd. of Educ., 330 U.S. 1 (1947).
92. Id. at 15-16.
93. Id.
94. Id. at 16 (citations omitted). Thomas Jefferson coined the phrase in a letter to the Danbury Baptists. See Letter from Thomas Jefferson to the Danbury Baptist Association (Jan. 1, 1802), reprinted in JEFFERSON: WRITINGS 510 (M. Peterson, ed., 1984).
95. At the time of writing, Jefferson was serving as a minister to France during the First Congress and did not directly participate in the drafting of the Bill of Rights. Reynolds v. United States, 98 U.S. 145, 163 (1879).
96. The letter did not purport to explain the meaning of the EstabUshment Clause; rather, it was "a simple note of courtesy written fourteen years after Congress passed the Bill of Rights." James E. M. Craig, "In God We Trust, " Unless We Are A Public Elementary School: Making A Case For Extending Equal Access to Elementary Education, 36 IDAHO L. REV. 529, 532 (2000).
97. Everson, 330 U.S. at 3-4.
98. Id. at 16-18 ("[C]utting off church schools from these services . . . would make it far more difficult for the schools to operate. . . . [The First Amendment] requires the state to be a [sic] neutral in its relations with groups of reUgious believers and non-believers; it does not require the state to be their adversary.")
99. Id. at 17 (acknowledging the possibility that some parents, if required to cover the transportation costs themselves, would not send their children to the church school).
100. Id. at 15.
101. See, e.g., HAMBURGER, supra note 37, at 3 (explaining the Everson Court created a myth by its use of Jefferson's letter to the Danbury Baptists).
102. See Wallace v. Jaffree, 472 U.S. 38, 92-114 (1985) (Rehnquist, C.J., dissenting).
103. Id. at 95. During the House debates over the proposed language, Madison said "he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Id. (citing 1 ANNALS OF CONGRESS 424 (Joseph Gales ed., 1834) (emphasis added)).
104. Id. at 98 ("[Madison] saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects.").
105. Amar, supra note 37, at 1160.
106. Ill. ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 211-12 (1948).
107. Id. at 209.
108. Id. at 210 (citation omitted).
109. 370 U.S. 421, 433 (1962). Recognizing that the prayer did not approve of any one religion over another and that it was so brief as to not impinge on anyone's freedom of religion, the Court nonetheless justified its holding on antiestablishment grounds. The Court quoted James Madison to explain: "It is proper to take alarm at the first experiment on our liberties. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?" Id. at 436. Justice Douglas's concurring opinion is the only one to address the nonbeliever. He explained the government's neutrality is one that applies among religions, not against reUgions. He declared: "The philosophy is that the atheist or agnostic - the nonbeliever - is entitled to go his own way. The philosophy is that if government interferes in matters spiritual, it will be a divisive force." Id. at 443 (Douglas, J., concurring).
110. See id. at 445 (Stewart, J., dissenting).
111. Id. He continued: "[W]e deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so." Id.
112. Id. at 445-46.
113. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 205 (1963).
114. Id. at 207-08.
115. The religious exercises were struck down as impermissibly violating the rights of the challengers. Id. at 224 ("The conclusion follows that in both cases the laws require reUgious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners.").
116. Id. at 226.
117. Id. at 310 (Stewart, J., dissenting) ("I cannot agree with what seems to me the insensitive definition of the Establishment Clause contained in the Court's opinion, nor with the different but, I think, equally mechanistic definitions contained in the separate opinions which have been filed.").
118. Id. at 313. Justice Stewart believed the choice between non-coercive religious exercise and no religious exercise "is one for each local community, and its school board, and not for [the Supreme] Court." Id. at 317.
119. Id. at 312.
120. Id.
121. Id. at 313.
122. See id. at 316.
123. 366 U.S. 420 (1961).
124. Id. at 452.
125. Id. at 449. In a dissenting opinion. Justice Douglas noted the advancement of majoritarianism by the Court. He stated: "No matter what is said, the parentage of [the Sunday closing] laws is the Fourth Commandment; . . . they serve and satisfy the religious predispositions of our Christian communities." Id. at 572-73 (Douglas, J., dissenting).
126. See Ratna Kapur, The Right to Freedom of Religion and Secularism in the Indian Constitution, in DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW 199, 204 (Mark Tushnet and Vicki C. Jackson, eds., 2002).
127. Thornton v. Caldor, 472 U.S. 703, 710-11 (1985).
128. See Kapur, supra note 96, at 204.
129. Lynch v. Donnelly, 465 U.S. 668, 681, 687 (1984) ("The display is sponsored by the City to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes.").
130. See infra notes 160-69 and accompanying text.
131. See Kapur, supra note 96, at 205 (explaining "state neutrality" has created the problem of majoritarianism in the United States, which reinforces majority practices and defines the norm).
132. 403 U.S. 602, 612-13 (1971).
133. Justice Rehnquist, in his Wallace v. Jaffree dissent, criticized the Lemon test as resting on a "historically faulty doctrine." 472 U.S. 38, 110 (1985) (Rehnquist, J., dissenting). The test he said, "has simply not provided adequate standards for deciding Establishment Clause cases . . . ." Id.
134. Lemon, 403 U.S. at 614.
135. Id. at 612-13.
136. Id. at 665 (White, J., concurring in the judgment in part, dissenting in part) ("Where a state program seeks to ensure the proper education of its young . . . free exercise considerations at least counsel against refusing support for students attending parochial schools simply because in that setting they are also being instructed in the tenets of the faith they are constitutionally free to practice.").
137. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 662-63 (2002) (upholding a school voucher program without applying the Lemon test).
138. 473 U.S. 402 (1985), overruled by Agostini v. Felton, 521 U.S. 203 (1997).
139. Id. at 412-14 ("[T]he scope and duration of . . . [the] program would require a permanent and pervasive state presence in the sectarian schools receiving aid.").
140. Id. at 414.
141. See id. at 419 (Burger, C.J., dissenting). Chief Justice Burger also described the Court's formulaic application of the Lemon criteria as "border[ing] on paranoia." See id.
142. Id. at 420.
143. See id. at 420-21 (Rehnquist, J., dissenting).
144. See id. at 423-25 (O'Connor, J., dissenting).
145. Id. at 429.
146. Id. at 430-31.
147. See McConnell, supra note 15, at 140.
148. 463 U.S. 783, 786-91 (1983).
149. Id. at 792.
150. 465 U.S. 668, 687 (1984).
151. 492 U.S. 573, 621 (1989).
152. Id. at 595.
153. Id. (citation omitted).
154. See Lynch, 465 U.S. at 688 (O'Connor, J., concurring).
155. See McConnell, supra note 15, at 165.
156. See Allegheny, 491 U.S. at 670 (Kennedy, J., concurring in judgment in part and dissenting in part).
157. Id.
158. Id. at 670-72. Justice Kennedy thought it was unacceptable that either the endorsement test would invalidate many traditional religious practices or that the test would have to be "twisted and stretched to avoid inconsistency with practices we know to have been permitted in the past, while condemning similar practices with no greater endorsement effect simply by reason of their lack of historical antecedent." Id. at 674.
159. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 652-53 (2002) (applying neutrality test);
160. Mitchell v. Helms, 530 U.S. 793, 794-95 (2000) (same);
161. Rosenberger v. Rector, 515 U.S. 819, 845-46 (1995) (same).
162. See Marcia S. Alembik, Note, The Future of the Lemon Test: A Sweeter Alternative for Establishment Clause Analysis, 40 GA. L. REV. 1171, 1186 (2006).
163. See, e.g., Robert L. Kilroy, Note, A Lost Opportunity to Sweeten the Lemon of Establishment Clause Jurisprudence: An Analysis of Rosenberger v. Rector & Visitors of the University of Virginia, 6 CORNELL J.L. & PUB. POL'Y 701, 711 (1997)
164. (arguing the effort to avoid entanglement resulted in "state avoidance of and/or discrimination against the religious component of our society" (citing STEVEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 111-23 (1993))).
165. Aguilar v. Felton, 473 U.S. 402, 429-30 (1985) (O'Connor, J., joined by Rehnquist, J., dissenting);
166. see also Roemer v. Bd. of Pub. Works, 426 U.S. 736, 768 (1976) (White, J., concurring) (referring to the entanglement test as "superfluous" and without "constitutional foundation");
167. Lemon v. Kurtzman, 403 U.S. 602, 661-71 (1971) (White, J., dissenting) (ridiculing the entanglement prong as "curious and mystifying").
168. See McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 891-92 (2005) (Scalia, J., dissenting) (listing cases in which the Court dispensed with the neutrality principle and the decision benefited a religious practice or group).
169. Id. at 892.
170. Id. at 892-93. Justice Scalia does not believe constitutional violations occur when the state prefers one religion over either nonreligion or other religions. See id. at 894 (Scalia, J., dissenting) (arguing that "[p]ublicly honoring the Ten Commandments . . . cannot be reasonably understood as a government endorsement of a particular religious viewpoint" because 97.7% of this country's religious observers recognize its divine symbolism); see also Thomas B. Colby, A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause, 100 NW. U. L. REV. 1097, 1098 (2006) (suggesting that Justice Scalia's dissent in McCreary County may have instigated "a wholesale rethinking of the constitutional relationship between church and state").
171. See supra Part II.
172. See supra Part I.
173. See, e.g., Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting) ("The Establishment Clause was adopted to prohibit . . . an establishment of religion at the federal level (and to protect state establishments of religion from federal interference).");
174. Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 310 (1963) (Stewart, J., dissenting) ("[I]t is not without irony that a constitutional provision evidently designed to leave the states free to go their own way should now have become a restriction upon their autonomy.").
175. Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring);
176. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 50 (2004) (Thomas, J., concurring).
177. See Newdow, 542 U.S. at 49 (Thomas, J., concurring).
178. Id. at 50. Justice Thomas noted that the only right protected by the Clause is the right against federal establishments. Id. at 50-51.
179. Id. at 10 (majority opinion).
180. Id. at 17-18.
181. Id. at 49 (Thomas, J., concurring).
182. Id.
183. For example, when the court of appeals held "under God" in the Pledge of Allegiance unconstitutional, Congress almost unanimously adopted an act stating that the Pledge is constitutional. An Act To Reaffirm the Reference to One Nation Under God in the Pledge of Allegiance, Pub. L. No. 107-293, 116 Stat. 2057 (2002) .
184. Newdow, 542 U.S. at 51 (Thomas, J., concurring). Despite his call for nonincorporation, Justice Thomas still went on to outline the criteria he would use to determine whether a particular state action constitutes an "establishment of religion" in the (likely) case that the Clause would
185. Van Orden v. Perry, 545 U.S. 677, 692-93 (2005) (Thomas, J., concurring) (alteration in original); see also id. ("This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause." (citation omitted)).
186. Newdow, 542 U.S. at 50 (Thomas, J., concurring).
187. See, e.g., Muñoz, supra note 37, at 635-36. But see Lietzau, supra note 37, at 1215 (suggesting nonincorporation is, in fact, plausible).
188. See Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311, 341 (1986).
189. Id. at 341 n. 130.
190. I refer here to attempts by Christian groups to influence the public sphere on issues such as homosexual sex, gay marriage, medical research, the Pledge of Allegiance, and home schooling.
191. In Missouri, for example, state legislators considered a bill naming Christianity the official "majority" religion of the state. H.C.R. 13, 93d Gen. Assem., 2d Sess. (Mo. 2006) (protecting the "majority's right to express their religious beliefs while showing respect for those who object"); see also John Mills, State Bill Proposes Christianity Be Missouri's Official Religion, KMOV.COM, Mar. 4, 2006, http://www.kmov.com/topstories/stories/030206ccklrKmovreligionbill.7d361c3f. html (last visited July 15, 2009).
192. The representative who introduced the legislation called upon Missourians to "stand with the majority" to recognize the "positive role that Christianity has played" in this country, but objectors criticized the bill "as coming dangerously close to endorsing an official state religion." Tim Hoover, Missouri Statehouse: Even the Pope Has a Say on HCR 13, KAN. CITY STAR, Mar. 12, 2006, at B1. The bill was dropped from the calendar soon after its introduction. See LegAlert (NETSCAN iPublishing, Inc. April 1, 2006), available on Westlaw at 4/1/06 LegAlert, 2006 WLNR 5482721.
193. "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. CONST. amend. I.
194. "Congress shall make no law . . . prohibiting the free exercise [of reUgion]." Id.
195. The Supreme Court incorporated the individual's freedom of speech in Gitlow v. New York. 268 U.S. 652, 666 (1925).
196. The Free Exercise Clause was incorporated in the 1939 Cantwell v. Connecticut decision. 310 U.S. 296, 303 (1939). There is little opposition to the incorporation of free exercise rights amongst those who support the incorporation of the Bill of Rights in general. See, e.g., Amar, supra note 37, at 1159.
197. "No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1.
198. See Employment Div. v. Smith, 494 U.S. 872 (1990),
199. superseded by statute, Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, 1993 U.S.C.C.A.N. (107 Stat.) 1488,
200. invalidated by City of Boerne v. Flores, 511 U.S. 507, 511 (1997).
201. Id. at 879.
202. Id. at 881.
203. 406 U.S. 205 (1972). The Yoder Court exempted an Amish family from a general state law mandating all students attend public or private school until the age of sixteen by noting that the Amish community rejected public education based on their reUgious beliefs and their alternative vocational education was designed to train the Amish children to integrate into the Amish way of life. Id.
204. 494 U.S. at 881.
205. 374 U.S. 398, 403 (1963). The new, rigorous test was applied to require the state to provide unemployment benefits to a Seventh-day Adventist Church member despite her refusal to work on Saturdays because she observed the Sabbath then. Id. at 400-01, 406, 410. The State Employment Security Commission had determined she was ineligible for benefits because of the restriction on her availability. Id. at 401. The Court decided otherwise because the denial of benefits effectively required appellant to violate a principle of her religion, prohibiting the free exercise of her religious liberties. Id. at 404. The state did not put forth an interest significantly substantial to justify the infringement on her constitutional rights. Id. at 406, 408. After so deciding. Justice Brennan reasoned that extending the unemployment benefits to the complainant did not constitute establishment of a religion because "it [reflected] nothing more than the governmental obligation of neutrality in the face of religious differences, and [did] not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall." Id. at 409.
206. 494 U.S. at 884.
207. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 545, 547 (1993) (invalidating city ordinances that targeted Santeria practice of animal sacrifice because city imposed no similar rule on state's secular practice of killing animals for food).
208. Smith, 494 U.S. at 877 (emphasis added) (citing Torcaso v. Watkins, 367 U.S. 488 (1961)). In Torcaso v. Watkins, Justice Black stated: [N]either a State nor the Federal Government can constitutionally force a person to "profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs. 367 U.S. at 495 (internal citation omitted). This is an idea carried over from the founding. See MADISON, supra note 36, at 33 (stating that compelling support for religious establishments violates "free exercise of Religion").
209. Torcaso, 367 U.S. at 490-91.
210. Kent Greenawalt, Diverse Perspectives and the Religion Clauses: An Examination of Justifications and Qualifying Beliefs, 74 NOTRE DAME L. REV. 1433, 1461 (1999) (suggesting that a state could not coerce all persons to participate in church services for at least one hour each week because that would offend the Free Exercise and EstabUshment Clauses).
211. Id. at 1463.
212. Id. ("Every government sponsorship of the truth of atheism, like every sponsorship of positive reUgious views, can be treated as forbidden.").
213. See discussion infra section III.B.
214. See Andrew Koppelman, Commentary, Akhil Amar and the Establishment Clause, 33 U. RICH. L. REV. 393, 399-401 (1999) (arguing that the equahty principles of the Equal Protection Clause of the Fourteenth Amendment are not offended by state establishments).
215. See Laurence H. Tribe, Comment, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future - or Reveal the Structure of the Present?, 113 HARV. L. REV. 110, 197 n. 364 (1999) (suggesting that "treating any state establishment of religion as a denial of equal protection of the laws rather than as a deprivation of some nebulous sort of liberty" may be a more sensible approach than the current antiestablishment doctrine applied against the states).
216. Welsh v. United States, 398 U.S. 333, 357 (1970) (Harlan, J., concurring in the judgment);
217. Walz v. Tax Comm'n, 397 U.S. 664, 696 (1970) (Harlan, J., concurring).
218. Welsh, 398 U.S. at 357. The issue in this case was whether an individual who objected to the draft based on intense ethical and moral convictions was entitled to a "conscientious objector" exemption to the general statute requiring military service. The Court decided in the affirmative even though the exemption required a belief in a "Supreme Being involving duties superior to those arising from any human relation." Id. at 336, 343 (majority opinion) (emphasis added).
219. Id. at 356 (Harlan, J., concurring in the judgment).
220. Id. at 361.
221. Id. at 356.
222. Id. at 343-44 (majority opinion).
223. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
224. See, e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944) (first noting "that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect").
225. See, e.g., Regents of Univ. of Ca. v. Bakke, 438 U.S. 265, 266 (1978).
226. See, e.g., Burlington N. R.R. Co. v. Ford, 504 U.S. 648, 651 (1992) (holding that because the state venue rules did not "classify along suspect lines like race or religion," there was no equal protection violation);
227. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) ("Unless a classification . . . is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations . . . .");
228. Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (denying Equal Protection Clause claim because refusal to provide Spanish-language forms not based a suspect class such as "race, religion or national origin").
229. Scholars have similarly suggested religion is a suspect classification. See, e.g., Alan E. Brownstein, Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution, 51 OHIO ST. L.J. 89, 135 (1990) (asserting that religious groups are protected under Equal Protection Clause);
230. Michael J. Mannheimer, Equal Protection Principles and the Establishment Clause: Equal Participation in the Community as the Central Link, 69 TEMP. L. REV. 95, 127 (1996) (asserting that strict scrutiny should apply to state action that "stigmatizes members of the community based on their religious status or belief by endorsing or disapproving of religion"); Paulsen, supra note 151, at 341 (suggesting that religion is a "suspect classification" because state establishments presumptively infringe on free exercise liberties).
231. See 3 CONG. REC. 1866 (1875) (characterizing discrimination based on race, creed, and nationality as violations of an individual's right "to stand equal with his fellow-citizens"). The Court has affirmatively held race and nationality are "suspect classes." See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (subjecting state anti-miscegenation law to strict scrutiny because it classified based on race); Korematsu, 323 U.S. at 216 (noting that because the state action affected the rights of a group based on national origin, the order was inherently suspect and rigid scrutiny was applied).
232. The remainder of this Note will assume that religion is a suspect classification and anytime a law on its face is based on religion, strict scrutiny applies. However, even if the Court did not accept religious groups as a suspect class, rational basis review (perhaps "with bite") is available for all other laws under the Equal Protection Clause. The rational basis test assesses whether the state action at issue is a rational means to an end that may be legitimately pursued by the state. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). When a law is reviewed under the rational basis test, it almost always means the Court will defer to the government's judgment to uphold the state action.
233. However, the Supreme Court has appeared to give the rational basis test "bite" in particular cases where a certain class is involved and the interest in preventing discrimination is strong. See, e.g., Romer v. Evans, 517 U.S. 620, 631-32 (1996) (striking down under rational basis review an amendment to the Colorado state constitution that would have prevented all municipal bodies in the state from taking any action to protect homosexual citizens from discrimination on the basis of their sexual orientation); Cleburne, 473 U.S. at 450 (applying rational basis review to strike down a zoning ordinance as applied to a group home for the mentally retarded because their status was the basis on which the city denied the group a permit to build their home). In the same way the Supreme Court protected homosexuals and the mentally ill from arbitrary state discrimination, it is foreseeable that the Court would protect religious groups - particularly minority religious groups - from laws that have no basis other than overt discrimination by the majority.
234. See McCleskey v. Kemp, 481 U.S. 279, 292, 298 (1987) (denying petitioner's equal protection claim of racial discrimination in death penalty sentencing because he failed to show the state acted with "discriminatory purpose" in his case).
235. Affirmative action programs that benefit racial minorities have been subject to strict scrutiny because the laws draw lines based on a suspect classification, See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-98 (1989) (plurality opinion) (subjecting race-conscious affirmative action program to strict scrutiny review even though classifications conferred a benefit). The same reasoning would apply if a law benefited religion over nonreligion. See Mannheimer, supra note 184, at 129.
236. Larson v. Valente, 456 U.S. 228 (1982).
237. Id. at 255.
238. Id. at 253.
239. Id. at 253-55.
240. Id. at 244.
241. Id. at 246.
242. Id. at 245.
243. Id.
244. See Paulsen, supra note 151, at 340-41; see also Carl H. Esbeck, When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis, 110 W. VA. L. REV. 359, 387 (2007) ("The safeguard for minority or unpopular religions is that the Establishment Clause operates much like the Equal Protection Clause does for racial and ethnic minorities.").
245. Larson, 456 U.S. at 245; see also Fowler v. Rhode Island, 345 U.S. 67, 69-70 (1953) (holding park regulation permitting church services in park but not Jehovah's Witness meetings unconstitutional under the First Amendment because State was preferring some religious groups over others);
246. Niemotko v. Maryland, 340 U.S. 268, 284 (1951) (holding denial of use of city park for Jehovah's Witness gatherings based on City Council's dislike for Witnesses' views, although park permits were issued to other religious organizations, unconstitutional). In Fowler, Justice Frankfurter concurred, finding that the Equal Protection Clause rendered the ordinance unconstitutional. 345 U.S. at 70 (Frankfurter, J., concurring).
247. E.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995);
248. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist, 508 U.S. 384, 394 (1993).
249. See Pinette, 515 U.S. at 761.
250. See, e.g., Lamb's Chapel, 508 U.S. at 394-95 (holding that Establishment Clause is not a bar to school district allowing church to show religious film on school premises made available for use by other groups); Widmar v. Vincent, 454 U.S. 263, 273-74 (1981) (holding Establishment Clause is not a bar to state university extending benefits available to other student groups to Bible study group).
251. See McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005)
252. (stating "[t]he touchstone for our analysis is the principle that the 'First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion'" (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)));
253. see also Douglas Laycock, Substantive Neutrality Revisited, 110 W. VA. L. REV. 51, 69-70 (2007) (arguing the law on government speech is currently one of "substantial restrictions on government speech endorsing or attacking religion").
254. But see Van Orden v. Perry, 545 U.S. 677, 698-705 (2005) (Breyer, J., concurring) (reasoning that Ten Commandments display on state capitol grounds conveys a secular message because of its long-term, uncontroversial presence that dominates the religious symbolism);
255. Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O'Connor, J., concurring) (finding that a nativity scene accompanied by Santa Claus, reindeer, candy-striped poles, and more did not endorse Christianity);
256. Marsh v. Chambers, 463 U.S. 783, 786-95 (1983) (upholding state legislative chaplain's opening daily sessions with prayer because of historical roots in the First Congress).
257. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 306-08 (2000) (holding that coach-led prayer prior to high school football game unconstitutionally endorses religion);
258. County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 592-94, 598-602 (1989) (holding that nativity scene in courthouse unconstitutional because it endorsed religion);
259. Wallace v. Jaffree, 472 U.S. 38, 56-61 (1985) (holding that moment-of-silence law unconstitutionally endorsed religion because it was clearly motivated to inject official prayer into public schools).
260. One commentator believes that disestablishment is possible in contemporary society in part because the Court's involvement in this area is not necessary when one considers that state religious establishments were eliminated, and that prohibitions on blasphemy, heresy, and witchcraft ended without the Court's participation in the early part of the eighteenth century. See Steven D. Smith, Unprincipled Religious Freedom, 7 J. CONTEMP. LEGAL ISSUES 497, 503 (1996).
261. For example, the New York State Constitution provides, in relevant part "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind." N.Y. CONST. art I, § 3. It also incorporates a non-discrimination principle that is similar in kind to what the Court would presumably find in the Due Process Clause of the Fourteenth Amendment of the federal Constitution. This section provides: "No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state." Id. § 11.
262. See, e.g., ALA. CONST. art I, § 3 ("That no religion shall be established by law; that no preference shall be given by law to any religious sect . . . that no one shall be compelled by law to attend any place of worship; nor to pay any . . . taxes, or other rate for [maintaining religious institutions] . . . .").
263. See, e.g., N.J. CONST. art. I, § 4 (prohibiting in part "establishment of one religious sect in preference to another").
264. See, e.g., Heritage Vill. Church & Missionary Fellowship, Inc. v. State, 263 S.E.2d 726, 730 n.1 (N.C. 1980) (finding state constitutional provisions to provide equivalent guarantees of the First Amendment). The North Carolina constitution does not have an explicit antiestablishment provision, but the North Carolina Supreme Court construed the "rights of conscious," N.C. CONST. art. I, § 13, and non-discrimination provisions, N.C. CONST. art. I, § 19, together to "coalesce into a 'firmly established principle of separation of church and state.'" Heritage Vill. Church, 263 S.E.2d at 730
265. (quoting Braswell v. Purser, 193 S.E.2d 90, 93 (N.C. 1972)).
266. For one author's view on the direction state courts will take if the federal Establishment provision no longer restricted them, see Kathryn Elizabeth Komp, Note, Unincorporated, Unprotected: Religion in an Established State, 58 VAND. L. REV. 301, 320-21 (2005). Komp argues that state constitutions are not a reliable source for preserving religious freedom less the federal Establishment Clause. She reasons that because some state courts indicate they will separate church and state no more than the Bill of Rights requires, they will seek to restrict state establishments if there is no federal bar on the same. She asserts that some states aim to achieve "the maximum amount of church-state interaction allowed at the federal level." Id. at 320. Komp fails to account for her presumption (or logical fallacy) that state courts will automatically read in the minimum restrictions on church-state interactions possible just because they have read the restrictions in their state constitutions "identical to those of the First Amendment." Id. It is also plausible that states are satisfied with the current level of church-state interaction imposed by Supreme Court jurisprudence and will change little to nothing in their own jurisprudence.
267. See, e.g., Sands v. Morongo Unified Sch. Dist., 809 P.2d 809, 820 (Cal. 1991) (plurality opinion) (explaining the state's religion provisions are "more protective of the principle of separation than the federal guarantee" although both provisions are worded the same);
268. E. Bay Asian Local Dev. Corp. v. State, 81 Cal. Rptr. 2d 908, 919 (Cal. Ct. App. 3d. 1999)(same);
269. Ams. United, Inc. v. Indep. Sch. Dist. No. 622, 179 N.W.2d 146, 155 (Minn. 1970) (asserting the "limitations contained in the Minnesota Constitution are substantially more restrictive" than those of the First Amendment of the U.S. Constitution);
270. Witters v. Wash. Comm'n for the Blind, 771 P.2d 1119, 1123) (Wash. 1989) (holding that the Washington State Constitution prohibited payments to a religious school that the U.S. Supreme Court unanimously permitted under the federal Constitution).
271. See Mannheimer, supra note 184, at 104 (explaining that in Everson the Court focused' on Jefferson's and Madison's writings to understand their vision of church/state relations, which led the Court to mistakenly believe that the Establishment Clause "was concerned solely with protecting the rights of religious minorities").
272. See W. Cole Durham, Perspectives on Religious Liberty: A Comparative Framework, in COMPARATIVE CONSTITUTIONAL LAW, supra note 96, at 1378, 1386 fig.4 (mapping the degree of separation of church and state against religious freedom to illustrate that to some extent, religious liberty is independent of the separation of church and state).
273. Id.
274. Lynch v. Donnelly, 465 U.S. 668, 686-87 (1984).
275. County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 601-02 (1989); see also supra notes 121-28 and accompanying text.
276. Lynch, 465 U.S. at 680 ("The crèche in the display depicts the historical origins of this traditional event long recognized as a National Holiday.").
277. See Paulsen, supra note 151, at 353 ("An individual's subjective sense of personal affront or 'psychic injury' alone is insufficient to invalidate such symbolic accommodations of religion.").
278. Judge McConnell, for example, argues that neither the Free Exercise nor the Equal Protection Clause will protect individuals whose only injury from government action is that they are offended or irritated. He explains that plaintiffs who only suffer '"psychological consequences presumably produced by observation of conduct with which one disagrees"' do not have standing to challenge the action. See McConnell, supra note 15, at 165 (quoting Valley Forge Coll. v. Amns. United, 454 U.S. 464, 485 (1982)).
279. Compare McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 874 (2005) (striking down Ten Commandments display under the secular purpose prong of the Lemon test), with Van Orden v. Perry, 545 U.S. 677, 691-92 (2005) (upholding Ten Commandments display under a historical test).
280. See McCreary, 545 U.S. at 850; Van Orden, 545 U.S. at 681.
281. See supra note 218 and accompanying text.
282. Although the majority in Van Orden found a valid secular purpose for the display: to reduce juvenile delinquency, 545 U.S. at 691-92, under an equal protection mode of analysis, this would still qualify as intentional discrimination because the Ten Commandments are an inherently religious symbol that distinguish between religion and nonreligion as well as among religious sects (monotheistic believers of the Ten Commandments versus all other religions).
283. Pleasant Grove City v. Summum, 483 F.3d 1044 (10th Cir. 2007), rev'd, 129 S. Ct. 1125 (2009).
284. The Tenth Circuit held the issue presented in this case must be analyzed under the category of "traditional public forum." Pleasant Grove City, 483 F.3d at 1050.
285. This is relevant because the type of forum in which the issue arises is determinative of the level of regulation the government can impose on speech in that forum. Content-based restrictions are presumptively invalid in a public forum. Id. at 1052 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992)).
286. Therefore, the state has the burden to show that it survives strict scrutiny. Id. at 1052 (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)).
287. See Petition for Writ of Certiorari at *4-5, Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009) (No. 07-665).
288. See Pleasant Grove City, 483 F.3d at 1053-54.
289. Id. at 1054. The court granted Summum's motion for a preliminary injunction to permit the display of its monument in Pioneer Park, id. at 1057, but the order was stayed pending petition to the U.S. Supreme Court. See Petition for Writ of Certiorari, supra note 224, at *16.
290. Pleasant Grove City, 483 F.3d. at 1057.
291. Even the City's Petition for Certiorari grounded the Questions Presented solely on free speech grounds: whether donated monuments remain the private speech of the donor and whether the municipal park is a public forum. Petition for Writ of Certiorari, supra note 224, at *1.
292. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1139 (2009) (Scalia, J., concurring).
293. Id. at 1138.
294. Id. Justice Alito, in the majority opinion, reminded us that the First Amendment's Free Speech Clause only limits government regulation of private speech; it does not restrict the government's speech. Id. at 1131 (majority opinion).
295. Id. at 1129. Nonetheless, the decision of what goes in the park is constrained by the Establishment Clause. Id. at 1132; see also Brief of Appellees at *16 n.3, Pleasant Grove City v. Summum, 483 F.3d 1044 (10th Cir. 2007) (No. 06-4057) (arguing that the Ten Commandments monument, like the other statues in the park, is a form of government speech, and that its display does not violate the Establishment Clause in light of the Supreme Court's holding in Van Orden v. Perry, 545 U.S. 677, 691 (2005)).
296. See Petition for Writ of Certiorari, supra note 224, at *27.
297. 393 U.S. 97, 109 (1968) ("The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the . . . Constitution.").
298. See id. at 107-08.
299. See, e.g., Engel v. Vitale, 370 U.S. 421, 433 (1962).
300. See Id. at 430.
301. 472 U.S. 38, 41-42 (1985). The state statute at issue provided a public school teacher may announce at the beginning of each day "that a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer . . . ." ALA. CODE § 16-1-20.1 (Supp. 1984), repealed by 1998 Ala. Laws 716.
302. Wallace, 472 U.S. at 61. This case is also interesting because the district court below found that two additional statutes not considered by the Supreme Court violated the Establishment Clause, but still held they were constitutional because the Establishment Clause did not apply to the states. In response, Justice Stevens took great pains to explain the error in that decision. He was appalled, considering "how firmly embedded in our constitutional jurisprudence is the proposition that the several States have no greater power to restrain the individual freedoms protected by the First Amendment than does the Congress of the United States." Id. at 48-49.
303. Id. at 57 n.45.
304. See id. at 56-57 (noting that the Senator who sponsored the bill "inserted into the legislative record - apparently without dissent - a statement indicating that the legislation was an 'effort to return voluntary prayer' to the public schools").
305. 505 U.S. 577, 599 (1992).
306. See id. at 593.
307. Id. at 592. Justice Kennedy explained that "[w]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy." Id.
308. Of course, it is possible that in the absence of Establishment Clause constraints, the Supreme Court would embrace a more robust interpretation of the Free Exercise Clause. This analysis will proceed on the assumption that the free exercise of religion jurisprudence will remain unchanged. So long as the Supreme Court does not set the floor lower than Smith, the analysis here would remain valid. In the same vein, if a state adopted a Religious Freedom Restoration statute more protective of religious freedoms than Smith, then the foregoing analysis may change in that particular state.
309. See, e.g., Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989) (plurality opinion) (striking down a state tax exemption granted for only reUgious periodicals because the preference for religion over nonreligion "effectively endorses religious belief");
310. Wallace v. Jaffree, 472 U.S. 38, 52-54 (1985) (holding unconstitutional a moment of silence held in public schools because "the political interest in forestalling intolerance extends beyond intolerance among Christian sects - or even intolerance among 'religions' - to encompass intolerance of the disbeliever and the uncertain");
311. Epperson v. Arkansas, 393 U.S. 97, 104 (1968) ("The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.");
312. Engel v. Vitale, 370 U.S. 421, 430 (1962) (holding public schools may not host daily prayers, even if they are "denominationally neutral").
313. 463 U.S. 783, 792 (1983); see supra note 119 and accompanying text.
314. This is not a desirable approach because so many of this country's traditions are undeniably imbued with Judeo-Christian roots. The historical practice test can thus be used to uphold various historical religious traditions to the exclusion of minority religions. See, e.g., McGowan v. Maryland, 366 U.S. 420, 451-52 (1961) (upholding Sunday closing laws); see also supra notes 93-98 and accompanying text.
315. For instance, if the state legislature is made up of adherents of one religious sect, then there would be no need to accommodate other religions. On the other hand, if there are several different denominations represented, then the prayer would have to be neutral among religious groups.
316. Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947).
317. 489 U.S. 1, 25 (1989) (plurality opinion).
318. Id. at 17. "A statutory preference for the dissemination of religious ideas offends our most basic understanding of what the Establishment Clause is all about and hence is constitutionally intolerable." Id. at 28 (Blackmun, J., concurring in judgment).
319. 397 U.S. 664 (1970).
320. Id. at 666-67.
321. Id. at 672-73.
322. Id.
323. Id. at 676.
324. Id. at 669.
325. Id. at 675.
326. Id. at 678.
327. See Glendon & Yanes, supra note 15, at 501.
328. See Esbeck, supra note 197, at 388.
329. 512 U.S. 687, 702-03, 705 (1994) (plurality opinion).
330. Id. at 715 (O'Connor, J., concurring in part and concurring in the judgment).
331. See id. at 716.
332. See Wisconsin v. Yoder, 406 U.S. 205, 219 (1972) (exempting Amish citizens from a state compulsory education law because of parents' right to raise children as they see fit and enforcement of the law "would gravely endanger if not destroy the free exercise of respondents' religious beliefs").
333. 463 U.S. 388, 403-04 (1983).
334. Comm. for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 798 (1973).
335. See Paulsen, supra note 151, at 357.
336. See MADISON, supra note 36, at 31.
337. Thomas v. Review Bd., 450 U.S. 707, 717-18 (1981).
338. E.g., WORKING GROUP ON HUMAN NEEDS AND FAITH-BASED AND COMMUNITY INITIATIVES, AGREED STATEMENT OF CURRENT LAW ON EMPLOYMENT PRACTICES, FAITH- BASED ORGANEATIONS, AND GOVERNMENT FUNDING 3 (2003), available at http://www.religionandsocialpolicy.org/docs/legal/ statement-of-current-law.pdf.
339. See Paulsen, supra note 151, at 358.