The relative irrelevance of the Establishment Clause

Texas Law Review

Volumn 89, Issue 3, 2011, Pages 583-651

  Schragger, Richard C ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79952927793     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (517)

1. See STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 3 (1993) (lamenting that efforts to "banish religion for politics' sake... have created a political and legal culture that presses the religiously faithful to be other than themselves, to act publicly, and sometimes privately as well, as though their faith does not matter to them").
2. Carl H. Esbeck, Equal Treatment: Its Constitutional Status, in EQUAL TREATMENT OF RELIGION IN A PLURALIST SOCIETY 9, 13 (Stephen V. Monsma & J. Christopher Soper eds., 1998) (arguing that "with the arrival of the New Deal and the explosive growth in the regulatory/welfare state, enforcing strict separation confined religious education and charitable ministries to ever smaller and smaller enclaves" and that to "increasing numbers of Americans, strict separation present[ed] a cruel choice between suffering funding discrimination or forced secularization").
3. Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 UTAH L. REV. 639, 640-41 ("In these many areas of overlap, the idea of 'separation between church and state' is either meaningless, or (worse) is a prescription for secularization of areas of life that are properly pluralistic.").
4. See MARCI A. HAMILTON, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW 257 (2007) (asserting that the Establishment Clause evidences the Founders' rational fear "of the mischief that can be fostered by religious institutions, particularly when they are sovereign" and that "[t]he history leading up to the founding of the United States and the Protestant cast of governance theories at the time undermine such attempts to treat religion as though it is not a dangerous and potent social force that must be limited, just as the state must be").
5. Steven G. Gey, Life After the Establishment Clause, 110 W. VA. L. REV. 1, 50 (2007) (stating that "every time particular religious factions have attempted to advance their own cause by circumventing our traditional national antipathy toward the joinder of church and state, the attempts have undermined religious liberty, increased the country's political divisions along religious lines, and even led to sectarian violence").
6. cf. BILL PRESS, HOW THE REPUBLICANS STOLE CHRISTMAS: THE REPUBLICAN PARTY'S DECLARED MONOPOLY ON RELIGION AND WHAT DEMOCRATS CAN DO TO TAKE IT BACK 71-72 (2005) (postulating that the United States is a secular nation but not a nation without values and arguing that the segregation of church and state actually allows America to be "the most religious nation on earth").
7. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....").
8. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1212-13 (1978) (describing the concept of underenforcement).
9. This exercise is partly inspired by Fred Schauer's argument that the Court's agenda is often tangential to the nation's. See Frederick Schauer, The Supreme Court, 2005 Term-Foreword: The Court's Agenda-And the Nation's, 120 HARV. L. REV. 4, 34 (2006).
10. Debates about the legitimacy of religiously based arguments in the public square, for example, normally assume that constitutional restraints will not be judicially enforced except indirectly. See, e.g., MICHAEL J. PERRY, RELIGION IN POLITICS: CONSTITUTIONAL AND MORAL PERSPECTIVES 44-49 (1997) (assuming a previously argued conclusion that constitutional restraints lack direct judicial enforcement while arguing the moral justifiability of religiously based arguments in public debate).
11. Richard Rorty, Religion as Conversation-Stopper, 3 COMMON KNOWLEDGE 1-6 (1994) (assuming that other participants in public discourse, rather than the courts, should determine the permissibility of religious argument in that discourse).
12. Richard John Neuhaus, A New Order of Religious Freedom, 60 GEO. WASH. L. REV. 620, 621 (1992) ("There is no legal or constitutional question about the admission of religion to the public square.... Religion is merely the public opinion of those citizens who are religious.").
13. Neuhaus's article was part of a George Washington Law Review symposium devoted to determining the contours of religious-political discourse. Symposium, Religion in Public Life: Access, Accommodation, and Accountability, 60 GEO. WASH. L. REV. 599 (1992).
14. The recent controversy over the building of an Islamic community center two blocks from the 9/11 site is only the most recent example. See Sheryl Gay Stolberg, Obama Strongly Backs Islam Center Near 9/11 Site, N.Y. TIMES, Aug. 13, 2010 at A1 ("The community center proposal has led to a national uproar over Islam, 9/11 and freedom of religion during a hotly contested midterm election season.").
15. Notably, even many of those who oppose the center have admitted that it would be unconstitutional to prevent it. See, e.g., E-mail from Howard Dean to Glenn Greenwald (Aug. 17, 2010), in Glenn Greenwald, Howard Dean: "Mosque" Should Move, SALON (Aug. 18, 2010), http://www.salon.com/news/opinion/glenn_greenwald/2010/08/18/dean ("[N]o one who understands the American Constitution can reasonably doubt the right of the builders to build."). The fact that it would be unconstitutional to prevent the building has not translated into political tolerance.
16. This term is from Larry Sager's seminal article, Fair Measure: The Legal Status of Underenforced Constitutional Norms, though Sager's use of it is more formal than mine here. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. at 1213. In some cases, I will be talking about formal underenforcement, i.e., situations in which the Court's decisions regarding the contours of the constitutional norm are not coextensive with the norm. In such cases, the norm is still legally binding on other constitutional actors. In other cases, I use the term to describe how the Establishment Clause norm is subservient to competing constitutional norms. In these instances, one might not describe the Establishment Clause norm as being legally binding on other constitutional actors because those actors are also bound by the competing constitutional norm.
17. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
18. See Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592-94 (1989).
19. Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592-94 (1989).
20. See MICHAEL J. PERRY, RELIGION IN POLITICS: CONSTITUTIONAL AND MORAL PERSPECTIVES at 32.
21. MICHAEL J. PERRY, RELIGION IN POLITICS: CONSTITUTIONAL AND MORAL PERSPECTIVES at 32.
22. Lemon, 403 U.S. at 613 (citing Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)).
23. See MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY 3-8 (2008).
24. See MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY 3-8 (2008) (collecting religiously motivated political rhetoric and acts that have generated controversy in the political culture).
25. cf. John C. Danforth, In the Name of Politics, N.Y. TIMES, Mar. 30, 2005, at A17 (lamenting the transformation of the Republican Party "into the political arm of conservative Christians").
26. Andrew Sullivan, Terri Is the Dying Martyr the Republican Right Can Use, SUNDAY TIMES, Mar. 27, 2005, § 1, at 15 (suggesting that President George W. Bush and the Republican Party were interested in the Terri Schiavo case as a means to energize religious zealots in preparation for midterm elections and in derogation of core Republican ideals).
27. See MICHAEL J. PERRY, RELIGION IN POLITICS: CONSTITUTIONAL AND MORAL PERSPECTIVES at 14-16 ("[T]he nonestablishment norm forbids government to take any action based on the view that one or more religious tenets are closer to the truth or more authentically American or otherwise better than one or more competing religious or nonreligious tenets.").
28. But see Douglas Laycock, The Benefits of the Establishment Clause, 42 DEPAUL L. REV. 373, 381 (1992) ("Questions of morality, of right conduct, of proper treatment of our fellow humans, are questions to which both church and state have historically spoken. They are questions within the jurisdiction of both.").
29. Michael J. Perry, Why Political Reliance on Religiously Grounded Morality Does Not Violate the Establishment Clause, 42 WM. & MARY L. REV. 663, 679-80 (2001) (recanting his earlier position and adopting the view that religiously based political choices do not violate the Establishment Clause).
30. MICHAEL J. PERRY, RELIGION IN POLITICS: CONSTITUTIONAL AND MORAL PERSPECTIVES at 34.
31. See, e.g., Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 UTAH L. REV. at 656-57 (stating that "[o]ne false view of separation is the view that religious ideas must not serve as rationales for public policy" and arguing that the "principle of secular rationale" rests on "inaccurate stereotypes and questionable epistemological premises").
32. Michael Stokes Paulsen, Lemon Is Dead, 43 CASE W. RES. L. REV. 795, 803 (1993) ("[I]f a statute motivated by religion, or even intended to advance religion, is neutral in its effects on freedom of religious exercise and nonexercise, the Establishment Clause supplies no justification for outlawing it.").
33. See Michael Stokes Paulsen, Lemon Is Dead, 43 CASE W. RES. L. REV. at 797 ("[T]he coercion principle, properly understood, is the best single test of when government action violates the Establishment Clause.").
34. For a discussion of French laws outlawing the wearing of veils, see generally Steven G. Gey, Free Will, Religious Liberty, and a Partial Defense of the French Approach to Religious Expression in Public Schools, 42 HOUS. L. REV. 1 (2005).
35. See Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 432 (2d Cir. 2002) (striking down New York's kosher fraud laws).
36. See, e.g., McGowan v. Maryland, 366 U.S. 420, 453 (1961) (upholding Maryland's Sunday closing laws).
37. See generally GERSION APPEL, CONCISE CODE OF JEWISH LAW (1989).
38. MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES (Bernard Auerbach & Melvin J. Sykes, trans.) (1994).
39. Commentators can be unclear about this distinction. For example, Douglas Laycock rejects the secular purpose requirement, arguing that exclusively religious claims can properly undergird laws governing "morality,... right conduct..., [and] proper treatment of our fellow humans." Douglas Laycock, The Benefits of the Establishment Clause, 42 DEPAUL L. REV. at 381.
40. But he also states that it is illegitimate for a religion to "use... the instruments of government... to directly impose their belief on others." GERSION APPEL, CONCISE CODE OF JEWISH LAW (1989).
41. MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES (Bernard Auerbach & Melvin J. Sykes, trans.) (1994) at 374-75.
42. This may indicate a distinction between religious exercise and other kinds of laws, with the former receiving more protection than the latter. Commentators might also draw distinctions between citizens' reasons for voting and legislators' or judges' reasons for creating law-giving citizens more leeway than legislators and legislators more leeway than judges to act on solely religious reasons. Cf. KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE 231, 236-39 (1988).
43. Moreover, some might draw a distinction between authoritative religious justifications and more generic ones, that is, between justifications based in the primacy of a particular religious code and justifications based in general claims about what God or a religiously based morality might require. GERSION APPEL, CONCISE CODE OF JEWISH LAW (1989).
44. MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES (Bernard Auerbach & Melvin J. Sykes, trans.) (1994) at 35 (explaining that "the tightness of connection between the religious source of guidance and the conclusion about a particular issue can vary considerably").
45. For a somewhat oblique discussion of such a possibility, see Steven Smith, Legal Discourse and the De Facto Disestablishment, 81 MARQ. L. REV. 203, 217-18 (1998).
46. It is not clear what is left of disestablishment if religious law can be an appropriate basis for secular law. But perhaps a distinction can be drawn between reasoning from religion (or religious principles) and treating them as authoritative. In Legal Discourse, Smith expresses wariness of the legal positivism that would support such a distinction. Douglas Laycock, The Benefits of the Establishment Clause, 42 DEPAUL L. REV. at 218 ("This fact likely reflects the convergence of a questionable restriction on reliance of religious beliefs with a dubious legal positivism, which in combination may help account for the virtual absence of religious perspectives in legal discourse.").
47. But Smith proceeds to reason from religious (or moral) principles in making an argument about the appropriate principle of damages in a tort case. Douglas Laycock, The Benefits of the Establishment Clause, 42 DEPAUL L. REV. at 225. Contrast that with the answer given by a student in my property class when asked what the appropriate rule in a nuisance case should be. She replied that she would determine what Canon Law required and adopt that.
48. 403 U.S. 602 (1971).
49. 403 U.S. at 612.
50. see also, e.g., Epperson v. Arkansas, 393 U.S. 97, 109 (1968) (striking down a state law that prevented the teaching of evolution because the state had offered no secular justification for its existence).
51. There are numerous critiques of the Lemon test and in particular of the "secular purpose" requirement. For a summary, see Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REV. 463, 467-72, and see also STEVEN G. GEY, RELIGION AND THE STATE 219-40 (2d ed. 2006) for a good discussion.
52. and see also STEVEN G. GEY, RELIGION AND THE STATE 219-40 (2d ed. 2006) for a good discussion.
53. 403 U.S. at 612.
54. Even in Lemon, it is worth noting, the Court held that the Pennsylvania and Rhode Island laws that dispensed financial aid to nonpublic schools, including "church-related" institutions, did not have an impermissible purpose. Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REV. at 613.
55. The Court found "no basis for a conclusion that the legislative intent was to advance religion" and nothing to undermine the stated legislative purpose to "enhance the quality of the secular education in all schools covered by the compulsory attendance laws." Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REV. 463, 467-72.
56. Instead, the aid programs were found to violate the Establishment Clause under the third, "excessive entanglement," prong of the Lemon test. Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REV. at 614-25.
57. Epperson, 393 U.S. at 107-08.
58. See Andrew Koppelman, Secular Purpose, 88 VA. L. REV. 87, 88 (2002) (asserting that the secular purpose test "bar[s] the government from enacting laws whose only justification is based on the tenets of some religion").
59. See Michael J. Perry, Religion in Politics, 29 U.C. DAVIS L. REV. 729, 737 (1996) (noting the "'underenforcement' of the full ideal of nonestablishment").
60. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 859 & n.9 (2005).
61. In McCreary County, Justice Souter lists four cases: Santa Fe Independent School District v. Doe, 530 U.S. 290, 308-09 (2000).
62. Edwards v. Aguillard, 482 U.S. 578, 586-93 (1987).
63. Wallace v. Jaffree, 472 U.S. 38, 56-61 (1985).
64. and Stone v. Graham, 449 U.S. 39, 41 (1980).
65. McCreary Cnty., 545 U.S. at 859 n.9.
66. McCreary County makes the fifth. In Epperson, a state law was invalidated for lacking a secular purpose, but that decision took place before Lemon. Epperson, 393 U.S. at 107-08.
67. see also Douglas Laycock, Substantive Neutrality Revisited, 110 W. VA. L. REV. 51, 59 n.46 (2007) (listing all six Supreme Court cases invalidating government actions for lack of a secular purpose).
68. 545 U.S. at 844.
69. 545 U.S. at 881.
70. 545 U.S. at 850-58.
71. 545 U.S. at 851, 853 (internal quotation marks omitted).
72. 545 U.S. at 859-65.
73. 545 U.S. at 864 ("[A]lthough a legislature's stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.").
74. 545 U.S. at 865 n.13 (rejecting the dissent's easier formulation of the test as having "no real bite").
75. 545 U.S. at 866 n.14 (maintaining that a reasonable observer can generally identify actions taken for sectarian reasons).
76. 545 U.S. at 874 ("[A]n implausible claim that governmental purpose has changed should not carry the day in a court of law....").
77. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308-09 (2000).
78. Wallace v. Jaffree, 472 U.S. 38, 56-61 (1985).
79. McCreary Cnty., 545 U.S. at 881.
80. Stone v. Graham, 449 U.S. 39, 41 (1980).
81. Edwards v. Aguillard, 482 U.S. 578, 586-93 (1987).
82. But cf. Lawrence v. Texas, 539 U.S. 558, 571(2003) (rejecting justifications for sodomy laws based in religious claims that homosexuality is immoral).
83. Ronald Dworkin has made a sustained argument that abortion is properly understood within the framework of the First Amendment. E.g., RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE CONSTITUTION 104-10 (1996).
84. RONALD DWORKIN, LIFE'S DOMINION 175 (1993).
85. Laurence Tribe also initially made the argument that abortion restrictions violated the secular purpose requirement. Laurence H. Tribe, The Supreme Court 1972 Term-Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 18-25 (1973).
86. He backed away from that view, however. LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 928 (1978).
87. Mark Tushnet suggests that issues like abortion might be called "religion-sensitive" and argues that because of their nature courts should be involved in assessing the proper balance of interests. Mark V. Tushnet, Reflections on the Role of Purpose in the Jurisprudence of the Religion Clause, 27 WM. & MARY L. REV. 997, 1003-04 & n.18 (1986).
88. 488 U.S. 297 (1980).
89. 488 U.S. at 319 (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)) (internal quotation marks omitted).
90. However, Justice Stevens has at least twice provided a counter position: In short, there is no reasonable ground for believing that Nancy Beth Cruzan has any personal interest in the perpetuation of what the State has decided is her life. As I have already suggested, it would be possible to hypothesize such an interest on the basis of theological or philosophical conjecture. But even to posit such a basis for the State's action is to condemn it. It is not within the province of secular government to circumscribe the liberties of the people by regulations designed wholly for the purpose of establishing a sectarian definition of life. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 350 (1990) (Stevens, J., dissenting).
91. This conclusion [that life begins at conception] does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, or on the fact that the legislators who voted to enact it may have been motivated by religious considerations. Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths, serves no identifiable secular purpose. That fact alone compels a conclusion that the statute violates the Establishment Clause. Webster v. Reprod. Health Servs., 492 U.S. 490, 566-67 (1989) (Stevens, J., concurring in part and dissenting in part) (internal citations omitted).
92. see also Bowers v. Hardwick, 478 U.S. 186, 211-12 (1986) (Blackmun, J., dissenting) ("The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine.... A state can no more punish private behavior because of religious intolerance than it can punish such behavior because of racial animus.")
93. overruled by Lawrence, 539 U.S. at 558.
94. 482 U.S. at 578.
95. 482 U.S. at 615 (Scalia, J., dissenting).
96. But cf. Lawrence, 539 U.S. at 571 ("The condemnation [of homosexual conduct] has been shaped by religious beliefs.... The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.").
97. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 874 (2005).
98. McCreary Cnty. v. ACLU of Ky., 545 U.S. at 900-01 (Scalia, J., dissenting).
99. (quoting McCreary Cnty. v. ACLU of Ky., 545 U.S. at 860 (majority opinion)).
100. McCreary Cnty. v. ACLU of Ky., 545 U.S. at 902-03 (Scalia, J., dissenting).
101. See Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REV. at 470.
102. Gey notes: Contrary to the usual criticism of Lemon, the problem is not that the terms of Lemon mean too little; the problem is that the terms of Lemon mean too much. An honest application of the Lemon test would require a far more rigorous separation of church and state than a majority of the current Supreme Court is willing to enforce. This does not mean the test is flawed. Rather, the separation principle that gives the test meaning does not have the support necessary to provide courts applying Lemon with a consistent orientation. McCreary Cnty. v. ACLU of Ky., 545 U.S. at 902-03.
103. See Edwards v. Aguillard, 482 U.S. 578, 615-16 (1987) (Scalia, J., dissenting) (noting that instances where legislators simply acted on their religious convictions or where a law merely coincided or harmonized with certain religious tenets did not violate the Lemon test).
104. Andrew Koppelman, Secular Purpose, 88 VA. L. REV. at 113-14 (arguing that the secular purpose prong of the Lemon test cannot always be satisfied by a mere rubber-stamp secular purpose because some legislation will be so clearly religious on its face that any purported secular purpose will be undermined).
105. See McCreary Cnty., 545 U.S. at 863 ("A secret motive stirs up no strife and does nothing to make outsiders of nonadherents, and it suffices to wait and see whether such government action turns out to have (as it may even be likely to have) the illegitimate effect of advancing religion.").
106. see also Clayton v. Place, 884 F.2d 376, 381 (8th Cir. 1989) (reversing district court's determination that school's "no-dancing" rule was adopted for religious reasons, despite the district court's finding that the rule did not have an articulated secular purpose).
107. See Andrew Koppelman, Secular Purpose, 88 VA. L. REV. at 113-16 (explaining that a law's legitimacy under the secular purpose prong should be decided in light of how that law can be reasonably perceived by the general culture).
108. For an explanation of the Court's endorsement doctrine, see County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592-621 (1989).
109. Cf. Robert J. Lipkin, Reconstructing the Public Square, 24 CARDOZO L. REV. 2025, 2062 (2003) ("The Establishment Clause requires only the final stage of lawmaking to be free from religious reasons, not debates in the media, school board meetings, and other non-lawmaking contexts of political justification.").
110. For discussion of the state action issue in Establishment Clause doctrine, see Richard J. Ansson, Jr., Drawing Lines in the Shifting Sand: Where Should the Establishment Wall Stand? Recent Developments in Establishment Clause Theory: Accommodation, State Action, The Public Forum, and Private Religious Speech, 8 TEMP. POL. & CIV. RTS. L. REV. 1, 6-8 (1998).
111. See, e.g., McCreary Cnty., 545 U.S. at 881 (finding that displaying the Ten Commandments in a Kentucky county courthouse served a predominantly religious purpose).
112. Cnty. of Allegheny, 492 U.S. at 602 (holding that the display of a crèche in a county courthouse expressly endorsed a Christian message).
113. I, along with much of the legal academy, have criticized the Court's endorsement test. See Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. 1810, 1875-80 (2004) (criticizing the Court's endorsement jurisprudence for its intrusiveness into "local political authority" and concluding that "the result... has been to drain the religious content from patently religious symbols and to reinforce a national standard that is both arbitrarily applied and detached from local social practice").
114. In her book Liberty of Conscience, Martha Nussbaum provides several examples of public officials endorsing Christianity or Christian teachings: John Ashcroft, former attorney general, regularly asked his staff to sing Christian songs before work began in the morning.... Ashcroft characterized America as a "culture that has no king but Jesus."... Lt. General William Boykin, a former head of U.S. Army Special Forces who is involved in the search for Osama bin Laden, said in a speech in June 2003 that radical Muslims hate the United States "because we're a Christian nation, because our foundation and roots are Judeo-Christian and the enemy is a guy named Satan."... Alan Keyes... claimed in a televised debate that voters should choose him because Jesus opposes his opponent, Barack Obama.... President Bush has recently endorsed the move to require the teaching of "Intelligent Design".... MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY at 5-6.
115. Former President George W. Bush has also said that he was called by God to run for the presidency. Alan Cooperman, Openly Religious, to a Point, WASH. POST, Sept. 16, 2004, at A1.
116. Similarly, politicians throughout the 1990s were outspoken about their religious beliefs and used religious gatherings to promote their political agendas. Steven G. Gey, The No Religion Zone: Constitutional Limitations on Religious Association in the Public Sphere, 85 MINN. L. REV. 1885, 1885-86 (2001).
117. Political candidates have asserted "that their God and His teachings define the country's very nature." Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1885.
118. For example, then-Mississippi Governor Kirk Fordice proclaimed to the Republican Governor's Convention in 1992 that "the United States of America is a Christian nation." Cathy Young, GOP's "Christian Nation", BOSTON.COM (July 12, 2004), http://www.boston.com/news/globe/editorial_opinion/oped/articles/2004/07/12/gops_christian_nation (internal quotation marks omitted).
119. Similarly, the 2004 Texas Republican Platform includes the statement that "the United States is a Christian nation... founded on fundamental Judeo-Christian principles based on the Holy Bible." REPUBLICAN PARTY OF TEXAS, 2004 STATE REPUBLICAN PARTY PLATFORM, at P-8, available at http://www.yuricareport.com/GOPorganizations/TexasRPTPlatform2004.pdf.
120. Additionally, several federal statutes in the United States Code and Executive Orders mention God. See, e.g., 10 U.S.C. § 6031(b) (2006) ("[I]t is earnestly recommended to all officers, seamen, and others in the naval service diligently to attend at every performance of the worship of Almighty God.").
121. 31 U.S.C. § 5112(d)(1) (2006) (requiring that coins bear the inscription "In God We Trust").
122. 36 U.S.C. § 302 (2006) (declaring that the national motto is "In God We Trust").
123. Exec. Order No. 10,631, 20 Fed. Reg. 6057 (Aug. 17, 1955), reprinted as amended in 10 U.S.C. § 802 app. at 860 (2006) (requiring that a tenet of the Code of Conduct for Members of the Armed Forces shall be "I will trust in my God and in the United States of America").
124. There have also been legislative prayers, e.g., 151 CONG. REC. 14,525 (2005), invocations of God in legislative debates, e.g., 151 CONG. REC. 13,237 (statement of Rep. Turner) ("Mr. Chairman, Jesus Christ is my Lord and Savior.").
125. and inaugural prayers, e.g., 143 CONG. REC. 471 (1997).
126. For an example of a judge praying from the bench, see Collmer v. Edmondson, 16 F. App'x 876, 876-77 (10th Cir. 2001).
127. For an example of a state motto that includes God, see ACLU of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 291 (6th Cir. 2001).
128. See generally LESLIE C. GRIFFIN, LAW AND RELIGION-CASES AND MATERIALS 483-528 (2d ed. 2010) (providing several examples of politicians, including presidents, invoking religion in speeches).
129. See MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY at 5-6.
130. Newdow v. Bush, No. CIV S-01-0218 LKK GGH PS, 2001 U.S. Dist. LEXIS 25936, at *4 (E.D. Cal. Dec. 8, 2001).
131. Newdow v. Bush, No. CIV S-01-0218 LKK GGH PS, 2001 U.S. Dist. LEXIS 25936 at *24-25.
132. Newdow v. Bush, 89 F. App'x 624, 625 (9th Cir. 2004).
133. Newdow v. Bush, 89 F. App'x 624, 625 (9th Cir. 2004).
134. 542 U.S. 1 (2004).
135. Newdow v. U.S. Cong., 292 F.3d 597, 612 (9th Cir. 2002).
136. Newdow, 542 U.S. at 5.
137. Newdow, 542 U.S. at 17-18.
138. Newdow, 542 U.S. at 9.
139. Newdow, 542 U.S. at 12, 17-18.
140. Justice Scalia took no part in the consideration of the Elk Grove case. Newdow, 542 U.S. at 18.
141. Newdow, 542 U.S. at 18 (Rehnquist, C.J., concurring in judgment).
142. See Alexander M. Bickel, The Supreme Court 1960 Term-Foreword: The Passive Virtues, 75 HARV. L. REV. 40 (1961).
143. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 537 (1997) (Stevens, J., concurring) (concluding that a governmental preference for religion, in contrast to "irreligion," is prohibited by the First Amendment).
144. Lee v. Weisman, 505 U.S. 577, 599 (1992) (holding that a school prayer at a graduation ceremony was forbidden by the Establishment Clause of the First Amendment).
145. See, e.g., Hein v. Freedom from Religion Found., 551 U.S. 587, 637 (2007) (Souter, J., dissenting) (concluding that a religious organization had standing to challenge injuries caused by Executive Branch officials).
146. Lee, 505 U.S. at 584 (finding it unnecessary to address a parent's standing in a graduation prayer case and deciding the case on the merits).
147. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 513-14 (1982) (Stevens, J., dissenting) (determining that taxpayer status granted a nonprofit organization standing to challenge the transfer of property from a federal agency to a religious institution).
148. Martin Kasindorf, Court Rules Pledge of Allegiance Unconstitutional, USA TODAY (June 26, 2002), http://www.usatoday.com/news/washington/2002/06/26/pledge-of-allegiance.htm#more.
149. See Sanford Levinson, Assessing the Supreme Court's Current Caseload: A Question of Law or Politics?, 119 YALE L.J. POCKET PART 99, 109 (2010) ("Perhaps the best recent example of a decision that can be explained only on political grounds was the Court's dismissal, on spurious 'standing' grounds, of a perfectly correct argument that would have forced them to sustain, just before the 2004 presidential election, the Ninth Circuit's Newdow holding....").
150. Philip N. Yannella, Stuck in the Web of Formalism: Why Reversing the Ninth Circuit's Ruling on the Pledge of Allegiance Won't Be So Easy, 12 TEMP. POL. & CIV. RTS. L. REV. 79, 90 (2002) (noting that the Pledge violates the coercion, endorsement, and neutrality tests).
151. But see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 37-45 (2004) (O'Connor, J., concurring) (listing four reasons why the inclusion of the words "under God" in the Pledge does not violate the Establishment Clause).
152. 551 U.S. 587 (2007).
153. 551 U.S. at 593.
154. 551 U.S. at 592, 595-96.
155. 551 U.S. at 595-96.
156. 392 U.S. 83 (1968).
157. 392 U.S. at 88.
158. 392 U.S. at 103-06.
159. 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, 116-19 (detailing lower court decisions relying on Hein in restricting taxpayer standing in Establishment Clause-related litigation).
160. 454 U.S. 464 (1982).
161. In Valley Forge, the underlying constitutional issue was whether the federal government's transfer of public land worth $500,000 to a Christian educational institution, without requiring payment, under the Federal Property and Administrative Services Act of 1947, violated the Establishment Clause. 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. at 468-69.
162. The Court avoided a decision on the merits of the case by holding that Americans United did not have standing to challenge the land transfer. 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. at 482.
163. 454 U.S. at 481-82.
164. See Nancy C. Staudt, Modeling Standing, 79 N.Y.U. L. REV. 612, 629-32 (2004) (discussing examples of the Court applying less stringent standards in determining whether a state or municipal taxpayer has standing).
165. Nancy C. Staudt, Taxpayers in Court: A Systematic Study of a (Misunderstood) Standing Doctrine, 52 EMORY L.J. 771, 800-04 (2003) (arguing that confusing Supreme Court jurisprudence regarding state and municipal taxpayer standing has resulted in more lenient standing requirements for state and municipal taxpayers than for federal taxpayers).
166. Both the future contours of Flast standing as well as the possible distinction between state and federal taxpayer standing are before the Court this Term. See Ariz. Christian Sch. Tuition Org. v. Winn, 562 F.3d 1002 (9th Cir. 2009), cert. granted, 130 S. Ct. 3350 (U.S. May 24, 2010) (No. 09-987).
167. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 643 (2003) (lifting the traditional limitation on public funding of religious education).
168. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1816 (discussing the local nature of many Religion Clause disputes).
169. See Staudt, Modeling Standing, 79 N.Y.U. L. REV. at 626 (reporting that "state and municipal taxpayers... file many more lawsuits against state and local government officials than federal taxpayers file against the US government").
170. That is because these disputes often involve public schools, which are predominantly funded by state and local taxpayers. See, e.g., Zelman v. Simmons-Harris, 536 U.S. at 616 n.24, 629 (listing various state and municipal taxpayer lawsuits filed over public school funding).
171. Bowen v. Kendrick, 487 U.S. 589, 618 (1988) (citing Flast as the basis for standing).
172. Tilton v. Richardson, 403 U.S. 672, 676 (1971) (failing to cite Flast but acknowledging that the plaintiffs were taxpayers).
173. See William P. Marshall & Maripat Flood, Establishment Clause Standing: The Not Very Revolutionary Decision at Valley Forge, 11 HOFSTRA L. REV. 63, 79 & n.95 (1982) ("Except for Walz [and the Establishment Clause cases], the Supreme Court has never recognized the right of a taxpayer to attack the favorable tax treatment of another taxpayer.").
174. see also Gene R. Nichol, Jr., Standing on the Constitution: The Supreme Court and Valley Forge, 61 N.C. L. REV. 798, 802 (1983) ("[T]he Supreme Court has been reluctant to countenance such suits [(those in which the alleged injury is shared by the general public)], whether under the rubric of taxpayer or citizen standing.").
175. Bowen v. Kendrick, 487 U.S. at 817 ("The law of standing, therefore, prohibits the assertion of constitutional rights that are held in common, yet generalized statutory rights regularly constitute a basis to sue in the federal courts.").
176. This is a big "if," however. It is possible that the Court will reject both Flast and state taxpayer standing in the Arizona Christian case, 562 F.3d 1002 (9th Cir. 2009), cert. granted, 130 S. Ct. 3350 (U.S. May 24, 2010) (No. 09-987), or treat them as one and the same.
177. 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. at 115 (asserting that "[t]he Supreme Court has on a number of occasions treated the problems of state taxpayer standing as conceptually indistinguishable from federal taxpayer standing").
178. See, e.g., Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 601-02 (1989) (holding that the display of a crèche in a county courthouse violated the Establishment Clause).
179. Stone v. Graham, 449 U.S. 39, 42?43 (1980) (holding that a Kentucky statute that required the posting of the Ten Commandments in public schools violated the Establishment Clause).
180. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 881 (2005).
181. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 317 (2000) (holding that studentled pre-football game prayer violated the Establishment Clause).
182. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 226 (1963) (prohibiting mandatory in-school Bible reading).
183. Engel v. Vitale, 370 U.S. 421, 424 (1962) (prohibiting daily recitation of a prayer in New York public schools).
184. MARK DEWOLFE HOWE, THE GARDEN AND THE WILDERNESS 11?12 (1965).
185. See Lynch v. Donnelly, 465 U.S. 668, 674 (1984) (holding that a city's inclusion of a nativity scene in its Christmas display did not violate the Establishment Clause and noting that "[t]here is an unbroken history of official acknowledgement by all three branches of government of the role of religion in American life").
186. McGowan v. Maryland, 366 U.S. 420, 431 (1961) (holding that Maryland law requiring businesses to close on Sunday does not violate the Establishment Clause because although "[t]here is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces," the law is permissible because it also has secular motivations).
187. See, e.g., Marsh v. Chambers, 463 U.S. 783, 795 (1983) (holding that the Nebraska legislature's practice of commencing each legislative session with a chaplain-led prayer did not violate the Establishment Clause).
188. For a general treatment, see Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Observer, 57 UCLA L. REV. 1545, 1549-56 (2010).
189. See, e.g., Engel, 370 U.S. at 424 (holding that daily recitation of a prayer in public schools violates the Establishment Clause).
190. Lemon v. Kurtzman, 403 U.S. 602, 622 (1971) ("Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.").
191. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT AND A LETTER CONCERNING TOLERATION 237 (1689) (Ian Shapiro ed., Yale Univ. Press 2003) (arguing that no government official ought ever be allowed the power to act on the influence of religion, as any power that can be used "for the suppression of an idolatrous church" can just as easily be used "to the ruin of an orthodox one").
192. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT AND A LETTER CONCERNING TOLERATION 237 (1689).
193. 459 U.S. 116 (1982).
194. 459 U.S. at 126-27.
195. 512 U.S. 687 (1994).
196. 512 U.S. at 702.
197. Grumet, 512 U.S. at 696-97.
198. Larkin, 459 U.S. at 126-27.
199. Only one other case has failed the entanglement prong since Lemon was decided. See Aguilar v. Felton, 473 U.S. 402, 412-14 (1985) (holding that New York's use of federal funds to pay public employees to provide remedial instruction at parochial schools violated the entanglement prong).
200. overruled by Agostini v. Felton, 521 U.S. 203 (1997).
201. See, e.g., McDaniel v. Paty, 435 U.S. 618, 629 (1978) (holding that a Tennessee statute prohibiting ministers from holding office violated the Free Exercise Clause).
202. For example, politicians and government officials, including Tom DeLay, Zell Miller, Bill Frist, Rick Santorum, and Robert Bork, participated in the Justice Sunday conferences organized by the Family Research Council (a conservative Christian organization) in 2005 and 2006. Thomas B. Edsall, Conservatives Rally for Justices, WASH. POST, Aug. 15, 2005, at A2.
203. Laurie Goodstein, Minister, a Bush Ally, Gives Church as Site for Alito Rally, N.Y. TIMES, Jan. 5, 2006, at A14.
204. At Justice Sunday II in August of 2005, then-Congressman Tom DeLay claimed "activist courts" are "ridding the public square of any mention of our nation's religious heritage." Thomas B. Edsall, Conservatives Rally for Justices, WASH. POST, Aug. 15, 2005, at A2.
205. At the same event, former Senator Zell Miller (Democrat, Georgia) criticized the Supreme Court because it "removed prayer from our public schools... legalized the barbaric killing of unborn babies, and it is ready to discard like an outdated hula hoop the universal institution of marriage between a man and a woman." McDaniel v. Paty, 435 U.S. 618, 629 (1978).
206. See Douglas Laycock, Substantive Neutrality Revisited, 110 W. VA. L. REV. at 75 ("[T]he political arena is full of religious arguments and full of appeals to religious voters. As far as the law is concerned, churches can even create political affiliates and political action committees, although they choose not [to] do so, probably for good religious and political reasons.").
207. see also McDaniel, 435 U.S. at 629 (invalidating a provision that excluded members of the clergy from the legislature).
208. Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 670 (1970) (holding that "churches as much as secular bodies and private citizens have [the] right" to "take strong positions on public issues").
209. Branch Ministries v. Rossotti, 211 F.3d 137, 143 (D.C. Cir. 2000) (holding that the rights of churches to engage in political speech eliminate any burden on free exercise from the restrictions on political speech by charities organized as nonprofits).
210. ALLEN D. HERTZKE, REPRESENTING GOD IN WASHINGTON 5 (1988).
211. John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. 279, 350-52 (2001).
212. BARRY HANKINS, AMERICAN EVANGELICALS 147-48 (2008).
213. The history of fundamentalist Christians' affiliation with politics dates back to the 1920s, when they opposed the teaching of evolution in public schools, CLYDE WILCOX, ONWARD CHRISTIAN SOLDIERS? 30-31 (2d ed. 2000).
214. and lobbied for the prohibition of alcohol, ALLEN D. HERTZKE, REPRESENTING GOD IN WASHINGTON at 32.
215. From the 1930s through the 1960s, their political involvement was limited but took shape in the conservative fight against communism, which was seen as promoting atheism and threatening traditional Christian values. CLYDE WILCOX, ONWARD CHRISTIAN SOLDIERS? at 34.
216. Fundamentalist Christians' political involvement temporarily came to a head in 1964 when they supported Republican Barry Goldwater's presidential bid; the failure of that campaign led to a decade-long resignation from the political arena for fundamentalists. BARRY HANKINS, AMERICAN EVANGELICALS at 34-35.
217. In 1976, Jimmy Carter, an evangelist and Democrat, garnered some support from evangelicals in his presidential victory. BARRY HANKINS, AMERICAN EVANGELICALS at 36.
218. Republican strategists saw this political reentry of evangelicals as an opportunity. BARRY HANKINS, AMERICAN EVANGELICALS 147-48 (2008).
219. Consequently, they joined forces with the well-known evangelical leader Jerry Falwell to form the Moral Majority in 1979. BARRY HANKINS, AMERICAN EVANGELICALS 147-48 (2008).
220. This strategy proved effective in Reagan's 1980 victory, which marked the beginning of a clear affiliation between fundamentalist Christians and the Republican Party. BARRY HANKINS, AMERICAN EVANGELICALS at 146-48.
221. The "Christian Right" proved beneficial to the Republican Party throughout the 1980s, supporting Reagan's reelection and George Bush's successful 1988 campaign. KENNETH WALD & ALLISON CALHOUN-BROWN, RELIGION AND POLITICS IN THE UNITED STATES 228-30 (Cong. Quarterly Press 3d ed. 1997).
222. In the 1990s, the Christian Coalition, founded by Pat Robertson and managed by Ralph Reed, took the place of the Moral Majority as the predominant Christian Right group and shifted its focus toward affecting politics at the grassroots level. BARRY HANKINS, AMERICAN EVANGELICALS at 154-55.
223. In the new millennium, the Christian Right has been represented by a wider variety of groups, including Focus on the Family and the Family Research Council, both of which were founded by James Dobson. BARRY HANKINS, AMERICAN EVANGELICALS at 156.
224. Their involvement is further evidenced in the 2008 Republican Platform, which referred to the "Judeo-Christian heritage of our country." REPUBLICAN NAT'L COMM., 2008 REPUBLICAN PLATFORM 53 (2008), available at http://www.gop.com/2008Platform/2008platform.pdf.
225. The Republican Platforms of 1988 and 1992 contained similar references to a Judeo-Christian national heritage, whereas those of 1996, 2000, and 2004 did not. One can search these platforms through a database maintained by the The American Presidency Project. Political Party Platforms, THE AMERICAN PRESIDENCY PROJECT, http://www.presidency.ucsb.edu/platforms.php.
226. See generally The 2004 Political Landscape, THE PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, http://people-press.org/report/?pageid=757 (finding that "[o]ver the past 15 years, religion and religious faith also have become more strongly aligned with partisan and ideological identification," "[r]eligious commitment has increased substantially among self-identified conservatives," and "there is a nearly two-to-one Republican advantage among white evangelicals").
227. John C. Danforth, In the Name of Politics, N.Y. TIMES, Mar. 30, 2005, at A17.
228. see also John C. Danforth, Onward (Moderate) Christian Soldiers, N.Y. TIMES, June 17, 2005, at A27 (noting that moderate Christians often come to political conclusions that differ from those of conservative Christians).
229. See Michael P. Allen, The Constitution at the Threshold of Life and Death: A Suggested Approach to Accommodate an Interest in Life and a Right to Die, 53 AM. U. L. REV. 971, 976-78 (2004) (discussing the actions taken by Republican Governor Jeb Bush during the Terri Schiavo controversy and the efforts of "conservative political forces" to induce such political action).
230. Thomas C. Marks, Jr., Terri Schiavo and the Law, 67 ALB. L. REV. 843, 844-45 (2004) (describing the series of events that surrounded the Terri Schiavo controversy).
231. Numerous government officials, including the Governor of Florida, the leader of the United States Senate, and the President of the United States, sought ways to block that removal on various grounds. See, e.g., An Act for the Relief of the Parents of Terri Marie Schiavo, Pub. L. No. 109-3, 119 Stat. 15, 15-16 (2005) (demonstrating Congress's will to block the removal of Shiavo's nutrition tubes on various grounds).
232. Statement on Terri Schiavo, 41 WKLY. COMP. PRES. DOC. 458 (March 17, 2005) (demonstrating President George W. Bush's desire to block the removal of Shiavo's nutrition tubes).
233. For many commentators, this attempt to legislate an end-of-life decision reflected the influence of religious fundamentalists on the Republican Party. See, e.g., No Release from Death, THE GUARDIAN (Apr. 2, 2005), http://www.guardian.co.uk/world/2005/apr/02/usa.guardianleaders1 (reporting John Danforth's concern that the Republican party "was being transformed into the political arm of conservative Christians").
234. Andrew Sullivan, Comment: Terri is the Dying Martyr the Republican Right Can Use, SUNDAY TIMES (Mar. 27, 2005), http://www.timesonline.co.uk/tol/comment/article438158.ece (citing the furor over the Schiavo case as "proof that the religious right runs the Republican party").
235. In fact, the Schiavo case was invoked as an example of the Republican Party's commitment to a "culture of life," a phrase borrowed by President Bush and other Republican leaders from the late Pope John Paul II's 1995 encyclical Evangelium Vitae, a Catholic theological document. JOHN PAUL II, EVANGELIUM VITAE 20 (1995), available at http://www.catholic-pages.com/documents/evangelium_vitae.pdf.
236. President Bush introduced the phrase into our political lexicon during an October 3, 2000, debate with Vice President Al Gore, arguing against abortion-inducing drug RU-486 by stating, "We can work together to create a culture of life." Mary Leonard, Bush Woos Catholics on Abortion: Nominee Echoes Pope's 'Culture of Life' Phrase, BOSTON GLOBE, Oct. 9, 2000, at A1.
237. The Republican Party later adopted the phrase in its 2004 Party Platform. REPUBLICAN NAT'L COMM., 2004 REPUBLICAN PARTY PLATFORM: A SAFER WORLD AND MORE HOPEFUL AMERICA 84 (2004).
238. The Culture of Life Foundation was formed to promote the tenets of the Pope's teachings in American public life. Cf. About Us, CULTURE OF LIFE FOUNDATION, http://www.culture-of-life.org/ ("The Culture of Life Foundation... exists to reveal and present the truths about the human person at all stages of life and in all conditions.").
239. See, e.g., ALDON D. MORRIS, THE ORIGINS OF THE CIVIL RIGHTS MOVEMENT: BLACK COMMUNITIES ORGANIZING FOR CHANGE 77 (1984) ("[T]he preexisting black church provided the early movement with the social resources that made it a dynamic force, in particular leadership, institutionalized charisma, finances, an organized following, and an ideological framework through which passive attitudes were transformed into a collective consciousness supportive of collective action.").
240. SCLC Leadership, S. CHRISTIAN LEADERSHIP CONF., http://www.sclcnational.org/core/item/page.aspx?s=3047.0.0.2607 (noting multiple reverends on the organization's board of directors).
241. Rebecca Phillips, Religious Left Goes Anti-War on Iraq, ABC NEWS (Feb. 16, 2003), http://abcnews.go.com/US/story?id=90854&page=1 (describing the religious group participation in advocating against the war in Iraq).
242. Linda C. McClain, Unleashing or Harnessing "Armies of Compassion"?: Reflections on the Faith-Based Initiative, 39 LOY. U. CHI. L.J. 361, 361 (2008).
243. 151 CONG. REC. 21,065 (2005) ("Former President Bill Clinton signed four laws explicitly allowing faith-based groups to staff on a religious basis when they receive Federal funds.").
244. Steven Fitzgerald, Note, The Expansion of Charitable Choice, the Faith Based Initiative, and the Supreme Court's Establishment Clause Jurisprudence, 42 CATH. LAW. 211, 211 (2002).
245. The program has been renamed "White House Office of Faith-Based and Neighborhood Partnerships." Exec. Order No. 13,498, 74 Fed. Reg. 6533 (Feb. 5, 2009).
246. Russell Goldman, Strange Bedfellows: Obama and Evangelicals, ABC NEWS (June 12, 2008), http://abcnews.go.com/Politics/Vote2008/story?id=5053866&page=1.
247. 98 CONG. REC. 1546, 3807 (1952).
248. The Religious Freedom Restoration Act was passed by unanimous consent in the House, 139 CONG. REC. 27,241 (1993), and passed in the Senate by a vote of 97-to-3.
249. 98 CONG. REC. at 26,416.
250. The Religious Land Use and Institutionalized Persons Act was adopted by unanimous consent. 146 CONG. REC. 16,623, 16,703 (2000).
251. See, e.g., B.A. Robinson, Religious Freedom Restoration Acts: Federal Legislation, RELIGIOUS TOLERANCE.ORG (2003), http://www.religioustolerance.org/rfra1.htm (stating that "[o]ver 60 religious organizations and civil liberties groups combined" to "promote the Religious Freedom Restoration Act").
252. B.A. Robinson, Religious Freedom Restoration Acts: Additional Attempts at Federal Legislation: RLPA and RLUIPA, RELIGIOUS TOLERANCE.ORG (2005), http://www.religioustolerance.org/rfra3.htm ("[The Religious Land Use and Institutionalized Persons Act] was supported by a most unusual coalition of religious and civil liberties groups, including the American Civil Liberties Association, Christian Coalition, Family Research Council, and People for the American Way.").
253. I.R.C. § 170(c)(2)(D) (2006).
254. I.R.C. § 501(c)(3) (2006).
255. I.R.C. § 508(a).
256. See Lloyd Hitoshi Mayer, Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise, 89 B.U. L. REV. 1137, 1145 (2009) (indicating that there is no evidence that Congress intended to restrict the activities of houses of worship in enacting the IRS prohibition).
257. See Christian Echoes Nat'l Ministry v. United States, 470 F.2d 849, 855 (10th Cir. 1972), cert. denied, 414 U.S. 864 (1973) (finding that an organization's political activities must be balanced in the context of the organization's objectives to determine if a substantial part of its activities was aimed at influencing legislation).
258. see also Regan v. Taxation with Representation of Wash., 461 U.S. 540, 551 (1983) (upholding the right of the IRS to limit the lobbying practices of nonprofits).
259. Depending on the source, the IRS is said to have revoked the tax-exempt status of a church for political activities either once or twice. Several sources list the IRS as having done so only once-revoking the exempt status of the Church at Pierce Creek in Binghamton, New York, in 1992 after it took out a full-page ad urging Christians not to vote for Bill Clinton. The revocation was upheld by the D.C. Circuit in Branch Ministries v. Rossotti, 211 F.3d 137, 145 (D.C. Cir. 2000).
260. See Benjamin M. Leff, "Sit Down and Count the Cost": A Framework for Constitutionally Enforcing the 501(c)(3) Campaign Intervention Ban, 28 VA. TAX. REV. 673, 696-97 (2009) ("In May of 2000, the U.S. Court of Appeals for the District of Columbia Circuit decided what is apparently the only case-Branch Ministries v. Rossotti-in which the Service revoked the taxexempt status of a church for engaging in campaign intervention.").
261. However, on a couple of different occasions, the IRS has stated that it has revoked the status of two churches for political activities. Although it is clear that one of these churches is the Church at Pierce Creek, the identity of the second church is unclear. See ERIKA LUNDER & L. PAIGE WHITAKER, CONG. RESEARCH SERV., RL 34447, CHURCHES AND CAMPAIGN ACTIVITY: ANALYSIS UNDER TAX AND CAMPAIGN FINANCE LAWS 1-2 (2008) ("In 2002, the IRS indicated that only two churches have lost their § 501(c)(3) status due to campaign intervention. One of these is the Church at Pierce Creek in Binghamton, New York.... The identity of the second church is not clear.").
262. Suzanne Sataline, Obama Pastors' Sermons May Violate Tax Laws, WALL ST. J., Mar. 10, 2008, at A1 (recounting that only two churches have had their tax exemption status revoked since tax law amendments in 1954 restricted campaign activity by nonprofits, the most recent being Branch Ministries Inc. of Binghamton, N.Y. for placing "full-page ads in two newspapers in 1992 urging Christians not to vote for then-candidate Bill Clinton").
263. In addition to these two churches, there have been a number of religious nonprofit organizations that have had their tax-exempt status revoked. See Lloyd Hitoshi Mayer, Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise, 89 B.U. L. REV. at 1148 & n.50 (claiming that five charities have lost tax-exempt status).
264. Lloyd Hitoshi Mayer, Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise, 89 B.U. L. REV. at 1144.
265. Cf. Frederick Schauer, The Supreme Court, 2005 Term-Foreword: The Court's Agenda-And the Nation's, 120 HARV. L. REV. at 12-36 (discussing the contrast between the issues on the Court's agenda and those important to the American public).
266. The Court has diluted the state-action requirement in the past. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 23 (1948) (ruling that private discriminatory covenants become state-action if enforced by a court).
267. Smith v. Allwright, 321 U.S. 649, 654, 664-66 (1944) (ruling that the Democratic Party of Texas's exclusion of black voters from participating in primary elections constituted state action).
268. Establishment Clause doctrine assumes a state-action requirement, so we may not consider these to be examples of judicial underenforcement. My point here is not that the state action doctrine should not exist (though one can certainly question it, see, e.g., Erwin Chemerinsky, Rethinking State Action, 80 NW. U. L. REV. 503, 550 (1985), in which he suggests that the state action requirement should be eliminated), but that it significantly constrains the reach of judicial doctrine and especially Establishment Clause doctrine.
269. 435 U.S. 618 (1977).
270. 435 U.S. at 642 (Brennan, J., concurring).
271. 435 U.S. at 642.
272. See 459 U.S. 116 (1982).
273. Douglas Laycock, Substantive Neutrality Revisited, 110 W. VA. L. REV. at 75 and accompanying text.
274. Religious lobbies have a long history of influence in the United States. Quakers helped start the movement for the abolition of slavery, DANIEL J.B. HOFRENNING, IN WASHINGTON BUT NOT OF IT 42 (1995).
275. and in the 1920s, Methodist prohibition proponents were a significant religious force in Washington, D.C., ALLEN D. HERTZKE, REPRESENTING GOD IN WASHINGTON at 28-29.
276. In 1943, the Quakers created the first official religious lobby to advocate for the protection of conscientious objectors during World War II, and the Civil Rights Act of 1964 was supported by a slew of liberal religious groups, including various Protestant denominations and black evangelical organizations. 459 U.S. at 29-31, 43. The 1980s marked the emergence of the fundamentalist Christian lobbies, which have not achieved their specific goals but have nonetheless influenced policy making. DANIEL J.B. HOFRENNING, IN WASHINGTON BUT NOT OF IT at 44.
277. For example, although fundamentalists have not succeeded at reinstituting school prayer or banning abortion, they helped in passing the Equal Access Act of 1984 (which provided certain rights for extracurricular religious groups in public schools) and have brought about various restrictions on abortion funding. KENNETH WALD & ALLISON CALHOUN-BROWN, RELIGION AND POLITICS IN THE UNITED STATES at 263.
278. Today, fundamentalist lobbies are more focused at the state and local levels, where many education and abortion issues are decided. CLYDE WILCOX, ONWARD CHRISTIAN SOLDIERS? 93-94.
279. For examples of right-wing religious lobbyists, see John Chadwick, Politics from the Pulpit: Evangelicals Pushing America Toward the Right, THE RECORD, Mar. 13, 2005, at A1, available at 2005 WLNR 26670367 (describing the movement of some evangelical leaders to "mobiliz[e] churchgoers into a political force").
280. Holly Edwards, Christian Right Leader Has Bush's Ear, TENNESSEAN, Feb. 20, 2005, at B1, available at 2005 WLNR 26789535 (describing Richard Land as the embodiment of the "growing number of politically savvy evangelicals who are increasingly making masterful use of their broad religious support to influence government policy and promote a conservative agenda").
281. Farah Stockman, Christian Lobbying Finds Success, Evangelicals Help to Steer Bush Efforts, BOSTON GLOBE, Oct. 14, 2004, at A25, available at 2004 WLNR 3613233 ("Increased political savvy among conservative Christians and an increased focus on international affairs have played a role in the success of evangelical lobbying.").
282. The Catholic lobby has sided with fundamentalists on some issues (i.e., abortion) and with liberal Protestants on others (i.e., military policy). ALLEN D. HERTZKE, REPRESENTING GOD IN WASHINGTON at 36-37. Jewish lobbyists have typically sided with liberal Protestants and, perhaps because of their history of persecution, have been especially focused on advocating the strict separation of religion and government. 459 U.S. at 37-38.
283. See STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 109 (explaining how some critics of the Establishment Clause doctrine blame the Supreme Court for what they see as religion's position of disfavor in America).
284. RICHARD J. NEUHAUS, THE NAKED PUBLIC SQUARE 161 (1984) (decrying the Court's disapproval of state-sponsored prayer in schools).
285. See Edwards v. Aguillard, 482 U.S. 578, 596-97 (1987) (invalidating a state statute that required the teaching of creationism in schools).
286. Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 779-80 (1973) (invalidating state laws granting financial aid to private schools).
287. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223-27 (1963) (holding unconstitutional a state law requiring prayer and daily reading of Bible verses in public schools, even though students could be excused upon written request of the parent).
288. Engel v. Vitale, 370 U.S. 421, 424 (1962) (finding a state-agency directive requiring daily prayer in New York public schools to be "wholly inconsistent with the Establishment Clause").
289. See, e.g., KEVIN PHILLIPS, AMERICAN THEOCRACY: THE PERIL AND POLITICS OF RADICAL RELIGION, OIL, AND BORROWED MONEY IN THE 21ST CENTURY 217 (2006) (observing that some fundamentalist religious constituencies want their government "to come from religious institutions, with the imprimatur of a president who openly favors at least some transfer of power").
290. Bruce Ledewitz, Up Against the Wall of Separation: The Question of American Religious Democracy, 14 WM. & MARY BILL RTS. J. 555, 560 (2005) (remarking on the emboldening of religious groups after the 2004 national election, and referring to one commentator who described the election as a possible "window of opportunity to impact a morally degenerating culture with the gospel").
291. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 33-45 (2004) (O'Connor, J., concurring in the judgment) (arguing that in-school recitation of the Pledge of Allegiance should not be disallowed because it does not violate the Establishment Clause).
292. See Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 589 (2007).
293. Hein v. Freedom from Religion Found., Inc., 551 U.S. at 612.
294. See Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) (arguing that the Establishment Clause should never have been incorporated against the States).
295. See, e.g., Lee v. Weisman, 505 U.S. 577, 587 (1992) ("It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise....").
296. Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 659 (1989) (Kennedy, J., concurring in part and dissenting in part) ("[G]overnment may not coerce anyone to support or participate in any religion or its exercise....").
297. Indeed, nonritual-specific laws are in some ways more coercive than ritual-specific laws because they may have more substantive effects on people's lives and life prospects.
298. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 53 n.4 (2004) (Thomas, J., concurring) ("It may well be the case that anything that would violate the incorporated Establishment Clause would actually violate the Free Exercise Clause....").
299. Lee v. Weisman, 505 U.S. at 54 n.5 ("[C]oercive government preferences might also implicate the Free Exercise Clause and are perhaps better analyzed in that framework.").
300. See, e.g., Jerome E. Bickenbach, Law and Morality, 8 LAW & PHIL. 291, 292 (1989) ("We cannot but be aware of the evident analogies between morality and the criminal law, for example, or notice that legal discourse depends upon, indeed seems committed to, moral categories like responsibility, fault, compensation, justice, and rights.").
301. Jurgen Habermas, Law and Morality, in 8 THE TANNER LECTURES ON HUMAN VALUES 219, 230 (Steven M. McMurrin ed., Kenneth Baynes trans., 1988) ("The moral principles of natural law have become positive law in modern constitutional states.").
302. See, e.g., Harold Berman, The Interaction of Law and Religion, 31 MERCER L. REV. 405, 406 (1980) (emphasizing President Jefferson's statement that "the liberties of a nation [cannot] be thought secure when we have removed their only firm basis, a conviction in the minds of the people that their liberties are the gift of God").
303. See, e.g., DAVID C. LEEGE & LYMAN A. KELLSTEDT, REDISCOVERING THE RELIGIOUS FACTOR IN AMERICAN POLITICS 12 (1993) (describing the moral logic of American political history as consisting of a belief that "[a] higher law gives purpose to the state" and that "[a] state gains legitimacy by invoking that higher law").
304. Berman, REDISCOVERING THE RELIGIOUS FACTOR IN AMERICAN POLITICS, at 411 (discussing how our society values free speech and rights to privacy but that these values find their foundation in the freedom of religion and of religious exercise).
305. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 893 (2005) (Scalia, J., dissenting).
306. See, e.g., RICHARD A. POSNER, HOW JUDGES THINK 269 (2008).
307. Judge Posner entitles his book's tenth chapter as "The Supreme Court Is a Political Court." McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 893 (2005) (Scalia, J., dissenting).
308. 542 U.S. 1, 5 (2004).
309. 542 U.S. at 17-18.
310. Consider the reaction to the Ninth Circuit's decision that the phrase "under God" was, in fact, a violation of the Establishment Clause. President Bush called the decision "ridiculous," the Senate's Democratic Leader Tom Daschle called it "just nuts," and the U.S. Senate unanimously passed a resolution condemning the Ninth Circuit's decision. Debra Carrolton Harrell & Margo Horner, Court Rejects Pledge of Allegiance in Schools, SEATTLE POST-INTELLIGENCER (June 27, 2002), http://www.seattlepi.com/national/76318_pledge27.shtml (internal quotation marks omitted).
311. McCreary Cnty., 545 U.S. at 881.
312. Van Orden v. Perry, 545 U.S. 677, 703 (2005) (Breyer, J., concurring).
313. See Richard A. Posner, The Supreme Court 2004 Term-Foreword: A Political Court, 119 HARV. L. REV. 32, 101-02 (2005) (noting the merits of Justice Breyer's concurrence given the "political character of constitutional adjudication").
314. Tom Curry, Breyer Casts Decisive Vote on Religious Displays, MSNBC.COM (June 27, 2005), http://www.msnbc.msn.com/id/8378199/ ("Hinting at practical political consequences, Breyer also worried that if the court banned longstanding displays of the Ten Commandments, it might spark public outrage....").
315. The display struck down in McCreary County was entitled "The Foundations of American Law and Government Display" and included nine framed documents of equal size. 545 U.S. at 856 (internal quotation marks omitted). One document included a text of the Ten Commandments and explicitly cited the "King James version" of the Bible at "Exodus 20:3-17." Richard A. Posner, The Supreme Court 2004 Term-Foreword: A Political Court, 119 HARV. L. REV. at 851-52.
316. Other documents included in the display were "copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the National Motto ["In God We Trust"], the Preamble to the Kentucky Constitution, and a picture of Lady Justice." Richard A. Posner, The Supreme Court 2004 Term-Foreword: A Political Court, 119 HARV. L. REV. at 856. Similarly, the display upheld in Van Orden was one of seventeen monuments on the Texas State Capitol grounds and included a text of the Ten Commandments as well as symbols including "two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ." 545 U.S. at 681.
317. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17-18 (2004).
318. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. at 17 (stating that where standing is based on family law rights that are in dispute, the Court should "stay its hand rather than reach out to resolve a weighty question of federal constitutional law").
319. Van Orden, 545 U.S. at 698-705 (Breyer, J., concurring).
320. Van Orden, 545 U.S. at 704.
321. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 890 (2005) (Scalia, J., dissenting) ("[T]he Court has not had the courage (or the foolhardiness) to apply the neutrality principle consistently.").
322. As a formal matter of underenforcement, it might follow that a different court that does not have the same political salience as the Supreme Court should follow McCreary County instead of Van Orden on the reasoning that a subconstitutional court does not implicate the same divisiveness concerns as does the Supreme Court. That is, the Ninth Circuit does not experience the same kinds of substantive Establishment Clause limits on its ability to strike down legislation which violates the nonendorsement or neutrality principle. Thanks to John Harrison for this point. See also Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. at 1251-52 (arguing that nonuniform answers to federal constitutional questions among state courts "should be welcomed as an exercise which can richly inform future federal judicial enforcement decisions").
323. See, e.g., Idaho Dep't of Emp't v. Smith, 434 U.S. 100, 104-05 (1977) (Stevens, J., dissenting in part) (arguing that the Court should abstain from deciding certain cases because "this Court's random and spasmodic efforts to correct errors summarily may create the unfortunate impression that the Court is more interested in upholding the power of the State than in vindicating individual rights").
324. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. at 1214 (arguing that the Court often refrains from deciding cases because of "concerns of the Court about its institutional role").
325. 545 U.S. at 862 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)).
326. 545 U.S. at 863.
327. Perry makes a number of these kinds of arguments, as do others. See, e.g., Michael J. Perry, Why Political Reliance on Religiously Grounded Morality Does Not Violate the Establishment Clause, 42 WM. & MARY L. REV. 663, 672 (2001) ("For virtually every moral belief on which a legislature might be tempted to rely in disfavoring conduct... it is the case that although for many persons the belief is religiously grounded..., for many others the belief... is grounded wholly on secular (nonreligious) premises.").
328. JOHN RAWLS, POLITICAL LIBERALISM (1993).
329. JOHN RAWLS, POLITICAL LIBERALISM (1993) at 212-54. For a seminal discussion of this question, see KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988).
330. See also Joshua Cohen, Establishment, Exclusion and Democracy's Public Reason 27 (Nov. 2009) (unpublished manuscript), available at http://128.122.51.12/ecm_dlv2/groups/public/@nyu_law_website__academics__colloquia__constitutional_theory/documents/documents/ecm_pro_063731.pdf ("Endorsement excludes because it conflicts with the ideal of public reason, which requires that political justification proceed on a shared terrain of argument....").
331. See, e.g., Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 UTAH L. REV. at 651-52 (explaining that some theorists argue that seemingly objective beliefs rely on the same faith claims that support religious beliefs).
332. cf. Michael W. McConnell, Religious Participation in Public Programs: Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 152 (1992) ("[A]ttorneys for traditionalist parents have tried to portray secular ideology as the religion of 'secular humanism'....").
333. See Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 UTAH L. REV. at 652-53 (indicating that Catholicism and fundamentalism are the two religious views secular liberals are most concerned about).
334. Recall that Jefferson's Act for Establishing Religious Freedom begins: "Whereas, Almighty God hath created the mind free..." VA. CODE ANN. § 57-1 (2007) (recodifying the Act drafted by Thomas Jefferson in 1777).
335. John Locke, A Letter Concerning Toleration, in TWO TREATISES OF GOVERNMENT AND A LETTER CONCERNING TOLERATION, (1689) at 22, 25 ("The toleration of those that differ from others in matters of religion, is so to agreeable the Gospel of Jesus Christ....").
336. McConnell makes this argument. See Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 UTAH L. REV. at 644-45 (listing various theorists known for grounding their enlightened political philosophy in theology).
337. Locke, the contract theorist most central to the American experience, had the divine at the heart of his natural rights theory. See Alex Tuckness, Locke's Political Philosophy, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Nov. 9, 2005), http://plato.stanford.edu/entries/locke-political/ (detailing Locke's philosophical positions, many of which invoked Christian theology and teachings).
338. ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN AMERICA 392 (Francis Bowen ed., Henry Reeve trans., Univ. Press 4th ed. 1863) (observing that Americans "combine the notions of Christianity and of liberty" such that they view their religiosity as integral to their freedom).
339. See, e.g., Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 UTAH L. REV. at 647-48 ("Unless we regret the religiously-motivated activism of... Harriet Beecher Stowe, Sojourner Truth, William Jennings Bryan, Dorothea Dix, and Martin Luther King, Jr., how can we say that presenting religious arguments in political debate is an act of bad citizenship?").
340. Claire McCusker, When Church and State Collide: Averting Democratic Disaffection in a Post-Smith World, 25 YALE L. & POL'Y REV. 391, 396 (2007) ("The role of religion in abolitionism and the passing of the Thirteenth, Fourteenth, and Fifteenth Amendments, the temperance movement and the Eighteenth Amendment, female Suffrage and the Nineteenth Amendment, and the civil rights movement and the repeal of Jim Crow laws is well documented by scholars.").
341. Compare Claire McCusker, When Church and State Collide: Averting Democratic Disaffection in a Post-Smith World, 25 YALE L. & POL'Y REV. at 396.
342. with Bret Boyce, Equality and the Free Exercise of Religion, 57 CLEV. ST. L. REV. 493, 525 (2009) ("Abolitionism in the nineteenth century and the civil rights movement of the twentieth century were strongly rooted in religious values; but slaveholders and opponents of civil rights also claimed to find justification in religion.").
343. See John L. Hammond, Revival Religion and Antislavery Politics, 39 AM. SOC. REV. 157, 183-84 (1974) (summarizing the role that Christian revival played in the antebellum abolitionist movement).
344. Letter from Martin Luther King, Jr. from Birmingham Jail to Fellow Clergymen (April 16, 1963), available at http://mlk-kpp01.stanford.edu/index.php/encyclopedia/documentsentry/annotated_letter_from_birmingham/ (invoking Christian teachings to demonstrate that segregation "is not only politically, economically and sociologically unsound, it is morally wrong and awful").
345. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights....").
346. See, e.g., Kent Greenawalt, The Natural Duty to Obey the Law, 84 MICH. L. REV. 1, 48 (1985) ("Although Christians through the ages have had very different interpretations of the relevant biblical passages and of the citizen's obligations to the state, the basic premise that political authority is ordained by God has been one basis for assigning the claims of the state a high priority.").
347. Richard Land, The Christian and the Government: A Delicate Balance, THE ETHICS & RELIGIOUS LIBERTY COMM'N OF THE S. BAPTIST CONVENTION (July 10, 2007), http://erlc.com/article/the-christian-and-the-government-a-delicate-balance ("It is our godly duty to obey the law even when no one's looking....").
348. See GEORGE GALLUP, JR. & D. MICHAEL LINDSAY, SURVEYING THE RELIGIOUS LANDSCAPE: TRENDS IN U.S. BELIEFS 97 (1999) ("Within this country, individuals have employed religious dogma to conclusively settle matters such as slavery and segregation, prohibition and pacifism, and on many topics, people have later renounced these conclusions again on spiritual grounds.").
349. ROBERT D. PUTNAM & DAVID E. CAMPBELL, AMERICAN GRACE: HOW RELIGION DIVIDES AND UNITES US 496 (2010) (observing that "most Americans, even those that are not particularly religious, endorse a moral code based on the laws of God").
350. Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. CHI. L. REV. 1245, 1265 (1994) ("The second nonsectarian argument for the constitutional privileging of religion appeals to our desire as a society to remain alive to the moral, non-self-regarding aspects of life, and sees organized religion as a taproot of this vital aspect of human flourishing.").
351. See Hein v. Freedom from Religion Found., 551 U.S. 587, 615-18 (2007) (Kennedy, J., concurring).
352. Hein v. Freedom from Religion Found., 551 U.S. at 616.
353. Cf. McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan, J., concurring) ("The State's goal of preventing sectarian bickering and strife may not be accomplished by regulating religious speech and political association.").
354. See McDaniel v. Paty, 435 U.S. at 642.
355. In McDaniel, Justice Brennan stated, Our decisions under the Establishment Clause prevent government from supporting or involving itself in religion or from becoming drawn into ecclesiastical disputes. These 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. With these safeguards, it is unlikely that they will succeed in inducing government to act along religiously divisive lines, and, with judicial enforcement of the Establishment Clause, any measure of success they achieve must be short-lived, at best. McDaniel v. Paty, 435 U.S. at 642.
356. But see McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 857-58 (2005) (striking down a posting of the Ten Commandments in a Kentucky courthouse).
357. See, e.g., James A. Huff, Note, Religious Freedom in India and Analysis of the Constitutionality of Anti-Conversion Laws, 10 RUTGERS J.L. & RELIGION (2009) (article at 25) ("[The High Court of India] also held that you could limit free speech to encourage public order. The court upheld the conviction of an editor of a magazine... because the editor 'deliberately and maliciously' outraged the religious feelings of a particular religious class....").
358. See NOAH FELDMAN, DIVIDED BY GOD: AMERICA'S CHURCH-STATE PROBLEM-AND WHAT WE SHOULD DO ABOUT IT 236 (2005) ("They have it much easier in France, for example, where the principle of laïcité-in effect, constitutionalized strong secularism-simply rejects the notion that religion is an inherently meaningful source of values, and so can easily conclude that religion can be excluded from the public sphere altogether.").
359. See, e.g., Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819, 845-46 (1995) (holding that the University of Virginia could not deny funding to a student newspaper on the basis of its religious message).
360. Note, however, that the public/private distinction can also permit religious speech by deeming it private. See Salazar v. Buono, 130 S. Ct. 1803, 1811 (2010) (concluding that a district court erred in enjoining the government from implementing a statute transferring federal land containing a privately placed cross to a private party).
361. But cf. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1129 (2009) (determining that privately donated religious monuments in a park reflect government speech rather than private speech).
362. Cf., e.g., Christian Echoes Nat'l Ministry v. United States, 470 F.2d 849, 857 (10th Cir. 1972) (denying tax-exempt status to a religious nonprofit with significant involvement in lobbying and elections), cert. denied, 414 U.S. 864 (1973).
363. REPUBLICAN NAT'L COMM., 2008 REPUBLICAN PLATFORM at 53.
364. REPUBLICAN NAT'L COMM., 2008 REPUBLICAN PLATFORM at 52.
365. REPUBLICAN NAT'L COMM., 2008 REPUBLICAN PLATFORM at 53.
366. REPUBLICAN NAT'L COMM., 2008 REPUBLICAN PLATFORM at 5.
367. REPUBLICAN NAT'L COMM., 2008 REPUBLICAN PLATFORM at 44-45.
368. Lee v. Weisman, 505 U.S. 577, 598-99 (1992).
369. See Lynch v. Donnelly, 465 U.S. 668, 675 (1984) (mentioning that the presidential Thanksgiving Proclamation is one of several examples of "official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders").
370. See Lynch v. Donnelly, 465 U.S. at 677 (mentioning that the National Day of Prayer is another example of the government acknowledging America's "religious heritage").
371. But see Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 603 n.52 (1989) ("It is worth noting that just because [the Court has] sustained the validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional.").
372. Newdow v. Bush, No. CIV S-01-0218 LKK GGH PS, 2001 U.S. Dist. LEXIS 25936, at *4 (E.D. Cal. Dec. 8, 2001).
373. See Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REV. at 470 (arguing that the Lemon test is a useful analytic tool but that applying the test by its terms "would require a far more rigorous separation of church and state" than the Supreme Court would willingly endorse).
374. Cf. William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court 1993 Term- Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 30-31 (1994) (describing the interactions between the Executive, Legislative, and Judicial Branches in the lawmaking process).
375. See Gerald N. Rosenberg, Judicial Independence and the Reality of Political Power, 54 REV. POL. 369, 394 (1992) (concluding that judicial independence is "seldom found" when Congress is opposed to Court opinion).
376. Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 HARV. L. REV. 657 (2011) (seeking to explain why political actors would obey constitutional commands that they oppose).
377. See Steven D. Smith, Separation and the "Secular": Reconstructing the Disestablishment Decision, 67 TEXAS L. REV. 955, 960 (1989) (characterizing the disestablishment of religion as a "public decision" in the 18th century).
378. John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. at 312-15.
379. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 46 (1996).
380. For the most recent articulation of this view, see BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
381. For other accounts of how the Supreme Court does not readily depart from existing political settlements, see GERALD N. ROSENBERG, THE HOLLOW HOPE (1993).
382. and MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004).
383. See also KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 40-50 (1999).
384. See Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. at 47 (attributing the shift in the Court's Establishment Clause doctrine to dramatic political, social, and ideological changes).
385. It is notable that a recent prominent treatment of religion and religious attitudes in the United States barely mentions the Supreme Court and has no index entry for "Establishment Clause" or "Free Exercise Clause." Aside from Roe v. Wade, the book appears to mention only two other Supreme Court cases, both in passing. See generally ROBERT D. PUTNAM & DAVID E. CAMPBELL, AMERICAN GRACE: HOW RELIGION DIVIDES AND UNITES US 496 (2010).
386. See, e.g., SARAH BARRINGER GORDON, THE SPIRIT OF THE LAW: RELIGIOUS VOICES AND THE CONSTITUTION IN MODERN AMERICA 4 (2010) (emphasizing the mutual influence between religious views and legal doctrines).
387. John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. at 369-70 (recognizing that both internal and external factors have contributed to the Court's dynamic Establishment Clause jurisprudence).
388. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. at 47 (acknowledging that evolving political views shaped Establishment Clause transformation).
389. Justice Scalia has urged the court to adopt an Establishment Clause jurisprudence that is in accord with out Nation's past and present practices, and that can be consistenly applied-the central feature of which is that there is nothing unconstitutional in a State's favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments. Van Orden v. Perry, 545 U.S. 677, 692 (2005) (Scalia, J., concurring).
390. See also SARAH BARRINGER GORDON, THE SPIRIT OF THE LAW: RELIGIOUS VOICES AND THE CONSTITUTION IN MODERN AMERICA at 692-94 (Thomas, J., concurring) (arguing that the Court should reconsider Establishment Clause incorporation against the states or, in the alternative, only prohibit government acts that coerce).
391. See, e.g., McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 890 (2005) (Scalia, J., dissenting) ("[T]he Court has not had the courage (or the foolhardiness) to apply the neutrality principle consistently.").
392. Van Orden, 545 U.S. at 692 (Scalia, J., concurring) (arguing that the Court should adopt an Establishment Clause jurisprudence "that can be consistently applied").
393. See, e.g., McCreary Cnty., 545 U.S. at 908-09 (Scalia, J., dissenting) (casting doubt on the noncoercion principle by arguing that there is no agreed upon standard or definition for what constitutes coercion).
394. Van Orden, 545 U.S. at 692 (Scalia, J., concurring) (rejecting the nonendorsement rule by explaining that there should be "nothing unconstitutional in a State's favoring religion generally" since this is in accordance with "our Nation's past and present practices").
395. But see Hernandez v. Comm'r, 490 U.S. 680, 713 (1989) (O'Connor, J., dissenting) (arguing, joined by Justice Scalia, that the contested government action violated the Establishment Clause).
396. See, e.g., McCreary Cnty., 545 U.S. at 885-89 (Scalia, J., dissenting) (relying on the government's past and present religious acts and support to illuminate the Establishment Clause's meaning).
397. Van Orden, 545 U.S. at 693 (Thomas, J., concurring).
398. See Cutter v. Wilkinson, 544 U.S. 709, 728 n.3 (2005) (Thomas, J., concurring) ("I note, however, that a state law that would violate the incorporated Establishment Clause might also violate the Free Exercise Clause.").
399. Justice Thomas stated as much: It is difficult to see how government practices that have nothing to do with creating or maintaining the sort of coercive state establishment described above implicate the possible liberty interest of being free from coercive state establishments.... To be sure, I find much to commend the view that the Establishment Clause "bar[s] governmental preferences for particular religious faiths." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 53 (2004) (Thomas, J., concurring) (quoting Rosenberger v. Rector of Univ. of Va., 515 U.S. 819, 856 (1995) (Thomas, J., concurring)).
400. See also Cutter v. Wilkinson, 544 U.S. at 53 n.4 ("It may well be the case that anything that would violate the incorporated Establishment Clause would actually violate the Free Exercise Clause....").
401. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. at 49-50.
402. See, e.g., McCreary Cnty., 545 U.S. at 885-94 (Scalia, J., dissenting) (relying on the government's past and present religious acts and support to illuminate the Establishment Clause's meaning).
403. Cutter, 544 U.S. at 729 (Thomas, J., concurring) (characterizing mandatory religious observance as a constitutionally prohibited establishment of religion).
404. Cf. Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2978 (2010) (applying First Amendment free speech analysis to the claims of a religious organization against a "public law school['s] condition[ing of the group's] official recognition... on the organization's agreement to open eligibility for membership and leadership to all students").
405. As Stanley Fish recently pointed out, Christian Legal Society was "squarely about religion" but could not be analyzed under the Establishment or Free Exercise Clauses. Stanley Fish, Is Religion Special?, N.Y. TIMES (July 26, 2010), http://opinionator.blogs.nytimes.com/2010/07/26/is-religionspecial/.
406. cf. Mark Tushnet, The Redundant Free Exercise Clause, 33 LOY. U. CHI. L.J. 71, 83 (2001) (arguing that the Free Speech Clause provides protection for almost all of what the Free Exercise Clause does).
407. See, e.g., CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION 51-77 (2007) (describing a model of religious freedom based on equality).
408. Thomas C. Berg, Can Religious Liberty Be Protected as Equality?, 85 TEXAS L. REV. 1185, 1186 (2007) (asserting that Supreme Court decisions and commentators can be found to support a nondiscrimination approach to the Religion Clauses).
409. For a discussion about the shift to neutrality in Religion Clause adjudication, see Daniel O. Conkle, The Path of American Religious Liberty: From the Original Theology to Formal Neutrality and an Uncertain Future, 75 IND. L.J. 1, 11-12 (2000).
410. and compare MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY at 21-22, 229-31 (discussing equality and neutrality in the context of establishment issues and recent challenges by members of the Court to the consensus behind the neutrality approach).
411. See generally Douglas Laycock, Substantive Neutrality Revisited, 110 W. VA. L. REV. 51, 59 n.46 (2007) (discussing his concept of "substantive neutrality").
412. The abandonment of the Establishment Clause is also animated by the apparent conceptual difficulties in defining religion and describing its proper bounds vis-à-vis other comprehensive belief systems. According to scholars of this ilk, the irreconcilable gap between judicial doctrine and constitutional practice is simply a product of these intractable conceptual difficulties. See, e.g., STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM passim (1995) (arguing that there is no way to distinguish religious from nonreligious claims and no possibility of a neutral principle that would not privilege certain worldviews over others).
413. Stanley Fish, Mission Impossible: Settling the Just Bounds Between Church and State, in LAW & RELIGION: A CRITICAL ANTHOLOGY 383 passim (Stephen M. Feldman ed., 2000) (discussing liberalism's inability to generate a theory of religious freedom without contradicting core liberal commitments)).
414. Larry Alexander, Kent Greenawalt and the Difficulty (Impossibility?) of Religion Clause Theory, 24 CONST. COMMENT. 243, 243-44 (2009) (arguing that the difficulty of distinguishing between what is religion and what is not religion hampers any effort to generate a coherent theory of religious liberty).
415. See, e.g., Gill v. Office of Pers. Mgmt., 699 F.2d 374, 377 (D. Mass. 2010) (holding that the Defense of Marriage Act violates the Equal Protection Clause).
416. In re Marriage Cases, 183 P.3d 384, 453 (Cal. 2008) (declaring that state laws prohibiting same-sex marriage violate equal protection, due process, and privacy principles).
417. superseded by constitutional amendment, CAL. CONST. art. I, § 7.5, amendment ruled unconstitutional, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003-04 (N.D. Cal. 2010).
418. Lewis v. Harris, 908 A.2d 196, 211, 215-17 (N.J. 2006) (holding that there is not a fundamental right to same-sex marriage under the New Jersey Constitution but that same-sex couples must be afforded the same rights as opposite-sex couples based on equal protection principles).
419. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961, 969 (Mass. 2003) (declaring that the marriage licensing statute denying marriage licenses to same-sex couples does not have a rational basis and, thus, violates the Massachusetts Constitution).
420. Baehr v. Lewin, 852 P.2d 44, 57, 67 (Haw. 1993) (holding that there is not a fundamental right to same-sex marriage under the Hawaii Constitution but that Hawaii laws prohibiting same-sex marriage will be subjected to strict scrutiny in equal protection challenges).
421. See Varnum v. Brien, 763 N.W.2d 862, 904-06 (Iowa 2009) (addressing the unspoken religious element of the challenged opposite-sex marriage law, even though the proponents of the law offered only secular justifications, and striking down the law on equal protection grounds).
422. In defense of the holding in Goodridge, Justice Greaney wrote: I do not doubt the sincerity of deeply held moral or religious beliefs that make inconceivable to some the notion that any change in the common-law definition of what constitutes a legal civil marriage is now, or ever would be, warranted. But, as a matter of constitutional law, neither the mantra of tradition, nor individual conviction, can justify the perpetuation of a hierarchy in which couples of the same sex and their families are deemed less worthy of social and legal recognition than couples of the opposite sex and their families. 798 N.E.2d at 973 (Greaney, J., concurring).
423. see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850 (1992) ("Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy.... Our obligation is to define the liberty of all, not to mandate our own moral code.").
424. 330 U.S. 1 (1947).
425. Perry, 704 F. Supp. 2d at 930-31.
426. Cf. Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions 101-02 (Univ. of San Diego Sch. of Law Legal Studies Research Paper Series, Research Paper No. 10-038, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1691661 (claiming that the school prayer decisions contributed to the "culture wars").
427. But cf. ROBERT D. PUTNAM & DAVID E. CAMPBELL, AMERICAN GRACE: HOW RELIGION DIVIDES AND UNITES US at 115-16 (offering evidence that the 1960s Supreme Court decisions concerning prayer in school were "at most, a modest contributor" to the rise of evangelicalism).
428. 410 U.S. 113 (1973).
429. To view the Republican Party platforms, which advocate these policy positions, see Political Party Platforms, THE AMERICAN PRESIDENCY PROJECT, http://www.presidency.ucsb.edu/platforms.php.
430. See generally Alexander M. Bickel, The Supreme Court 1960 Term-Foreword: The Passive Virtues, 75 HARV. L. REV. 40 (1961) (discussing the political influences on the Supreme Court's decision regarding whether, when, and how to adjudicate).
431. William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. 1279, 1294 (2005) (internal quotation marks omitted).
432. See William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. at 1301-10 (discussing methods by which judges can and should actively employ judicial review to lower the stakes of politics).
433. William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. at 1283.
434. William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. at 1283.
435. William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. at 1313.
436. Richard Primus, Double-Consciousness in Constitutional Adjudication, 13 REV. CONST. STUD. 1, 1-3 (2007).
437. Richard Primus, Double-Consciousness in Constitutional Adjudication, 13 REV. CONST. STUD. at 3.
438. Richard Primus, Double-Consciousness in Constitutional Adjudication, 13 REV. CONST. STUD. at 3.
439. 347 U.S. 483 (1954).
440. 410 U.S. 113 (1973).
441. 539 U.S. 558 (2003).
442. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court stated, 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.
443. 505 U.S. 833, 866-67 (1992).
444. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004) at 441-42 ("The post-Brown racial fanaticism of southern politics produced a situation that was ripe for violence, while Brown itself created concrete occasions on which violent opposition to school desegregation was likely.... By helping lay bare the violence at the core of white supremacy, Brown accelerated its demise.").
445. See generally MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004) at 442 (stating that the backlash resulting from Brown was necessary to "enable[] transformative racial change to occur as rapidly as it did" under the Civil Rights Act of 1964).
446. RANDALL BALMER, GOD IN THE WHITE HOUSE: A HISTORY 94-97 (2008).
447. 461 U.S. 574 (1983).
448. 461 U.S. at 605.
449. WILLIAM MARTIN, WITH GOD ON OUR SIDE 173 (1996).
450. BARRY HANKINS, AMERICAN EVANGELICALS at 144.
451. When the teaching of evolution became widely accepted following the Scopes Monkey Trial in 1925, many fundamentalists were content to withdraw from national politics because they could take refuge in their own isolated communities. RANDALL BALMER, GOD IN THE WHITE HOUSE: A HISTORY at 97.
452. Private Christian schools were seen as a sanctuary, where students were free to pray and were not subject to the teaching of evolution. WILLIAM MARTIN, WITH GOD ON OUR SIDE at 168 ("Although many of these schools were 'segregation academies,' formed in the aftermath of Brown, 'most scholarly investigations have concluded... that by the mid-1970s integration was no longer a significant factor in their continued proliferation.'" (internal quotation marks omitted)).
453. Thus, when the IRS reached into the private realm of these Christian schools (on the basis of segregation), fundamentalist Christians were outraged. WILLIAM MARTIN, WITH GOD ON OUR SIDE at 168-69.
454. Republicans saw this outrage as an opportunity to revive fundamentalist Christians' political involvement in favor of the Republican Party, which claimed to be opposed to intrusive governmental actions;thus, fundamentalists were motivated to reenter the political realm, and the Republicans won their renewed voting bloc by convincing fundamentalist leaders that the Democratic Carter Administration was responsible for the IRS removal of Bob Jones University's tax-exempt status (even though the IRS decision regarding Bob Jones University was made before Carter came into office). RANDALL BALMER, GOD IN THE WHITE HOUSE: A HISTORY at 98, 100-01.
455. RANDALL BALMER, GOD IN THE WHITE HOUSE: A HISTORY at 100.
456. Cf. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 417-18 (2007) (noting the influence that Bob Jones had on the opposition to Roe).
457. ROBERT D. PUTNAM & DAVID E. CAMPBELL, AMERICAN GRACE: HOW RELIGION DIVIDES AND UNITES US at 392 (noting that it "took a few years for evangelical leaders to embrace the pro-life cause").
458. Cf. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. at 375-77 (arguing that, although most commentators view backlash as problematic, there are positive benefits that can result from backlash).
459. A recent example of a backlash that was unanticipated was the public's response to the Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005), a takings case.
460. See Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 MINN. L. REV. 2100, 2163-64 (2009) (describing the backlash to Kelo as anomalous given the decision's consistency with relevant precedent).
461. See, e.g., Andy Kanengiser, Ten Commandments Display Receives OK from Senators, CLARION LEDGER, Mar. 30, 2005, at A1, available at 2005 WLNR 27035709 (detailing the Mississippi Senate's overwhelming approval of legislation allowing the Ten Commandments to be displayed at public buildings).
462. Ken Kusmer, State Lawmakers Want Monument in Place, FORT WAYNE NEWS SENTINEL, June 28, 2005, at L1, available at 2005 WLNR 10175356 (describing Indiana legislators' calls for the installation of a Ten Commandments monument on the statehouse grounds).
463. cf. Melanie Hunter, Amendment Would Reverse Ruling on Ten Commandments, CNSNEWS.COM (June 30, 2005), http://www.gopusa.com/news/2005/july/0701_ten_commandments.shtml (describing a constitutional amendment introduced by more than one hundred congressmen that would create the right to post the Ten Commandments on public property).
464. See, e.g., Hans Hacker, Moses v. Jesus: Why do Conservative Christians Prefer Moses' Commandments to Jesus' Beatitudes, EZINE ARTICLES (July 6, 2005), http://ezinearticles.com/?Moses-v.-Jesus:-Why-do-Conservative-Christians-Prefer-Moses-Commandments-to-Jesus-Beatitudes?&id=48961 ("Rejection of the Ten Commandments by courts has contributed to disaffection with the society, belief that Christian values are under attack, and sustained political and legal action on the part of the conservative Christian social movement.").
465. See NOAH FELDMAN, DIVIDED BY GOD: AMERICA'S CHURCH-STATE PROBLEM-AND WHAT WE SHOULD DO ABOUT IT at 236-37 ("I believe that the history of church and state in America... point[s] toward an answer.... [O]ffer greater latitude for public religious discourse and religious symbolism, and at the same time insist on a stricter ban on state funding of religious institutions and activities.").
466. NOAH FELDMAN, DIVIDED BY GOD: AMERICA'S CHURCH-STATE PROBLEM-AND WHAT WE SHOULD DO ABOUT IT at 237.
467. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1880.
468. But see Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, 94 MINN. L. REV. 972, 977-79 (2010) (arguing that there are high costs to allowing noncoercive religious endorsements).
469. Consider Justice Breyer's assessment of divisiveness in two recent cases. In Zelman, Justice Breyer made a strong case in dissent for why vouchers and other kinds of financial transfers to religious entities would produce religious factionalism. See Zelman v. Simmons-Harris, 536 U.S. 639, 724-25 (2002) (Breyer, J., dissenting) (voicing concern that efforts to enforce the criteria that will invariably accompany government funds expended on voucher schools "not only will seriously entangle church and state, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government" (citation omitted)).
470. In Van Orden, he found that the ongoing existence of the Ten Commandments display at issue had not generated similar divisiveness. Van Orden v. Perry, 545 U.S. 677, 700-04 (2005) (Breyer, J., concurring).
471. Cf. Frederick Schauer, May Officials Think Religiously?, 27 WM. & MARY L. REV. 1075, 1084 (1986) (arguing that the Court might choose to resist the political culture's embrace of unconstitutional but otherwise widely accepted acts).
472. Cf. John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. at 366 (observing that religious schools are no longer all Catholic and school aid no longer favors any one religion).
473. See Ira C. Lupu, Government Messages and Government Money: Santa Fe, Mitchell v. Helms, and the Arc of the Establishment Clause, 42 WM. & MARY L. REV. 771, 772-73 (2001) (describing how cases in Establishment Clause jurisprudence have been tending in the direction of regulating symbols).
474. See Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1818-19 (arguing that courts should be cognizant of the level of government against which rights are being asserted).
475. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1831-91.
476. Others have made versions of it as well. See Ira C. Lupu & Robert W. Tuttle, Federalism and Faith, 56 EMORY L.J. 19, 89-104 (2006) (articulating a theory of partially incorporating the First Amendment to maintain core nonestablishment norms while explicitly expanding state leeway to promote and support religious enterprise).
477. Mark D. Rosen, Establishment, Expressivism, and Federalism, 78 CHI.-KENT L. REV. 669, 669 (2003) (suggesting that it is desirable to tailor constitutional limitations based on whether the government actor is a federal, state, or local entity).
478. Mark D. Rosen, The Surprisingly Strong Case for Tailoring Constitutional Principles, 153 U. PA. L. REV. 1513, 1516-17 (2005) (arguing that tailoring of application of constitutional principles to different levels of government has merit and should not be categorically rejected).
479. see also Steven D. Smith, Our Agnostic Constitution, 83 NYU L. REV. 120, 153 & n.126 (2008) (discussing federalism as a potential solution to church-state conflicts).
480. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1828.
481. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1829.
482. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1823.
483. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1853.
484. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1815.
485. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1818-19.
486. THE FEDERALIST NO. 10, at 83-84 (James Madison) (Clinton Rossiter ed. 1961).
487. See Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1823-31 (asserting that decentralization under "constitutional conditions in which religious activity will more likely be pursued" serves as a "structural check on religious aggrandizement" that encourages "healthy religious pluralism," the "chief structural check on religious factionalism").
488. See generally DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 12-37 (1991) (examining the role of interest groups in the political process).
489. See DAVID KUO, TEMPTING FAITH: AN INSIDE STORY OF POLITICAL SEDUCTION 159-60 (2006) (recalling conservative Republicans' efforts "to allow groups that aimed to convert people to a particular faith to be able to receive direct federal grants").
490. Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2122-23 (1996).
491. Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. at 2151.
492. See Salazar v. Buono, 130 S. Ct. 1803 (2010).
493. See DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION at 146 (concluding that "relatively compact groups," such as religious organizations, "are likely to exercise undue influence").
494. ALLEN D. HERTZKE, REPRESENTING GOD IN WASHINGTON at 49-69 (discussing the intense grassroots lobbying power of various religious organizations).
495. This admittedly may be naïve. Consider how a local zoning issue involving a mosque project in lower Manhattan has produced a national firestorm. See Sheryl Gay Stolberg, Obama Strongly Backs Islam Center Near 9/11 Site, N.Y. TIMES, Aug. 13, 2010 at A1 (describing the debate-which has elicited statements from President Barack Obama and other public figures-as both a "high-profile battle" and "thorny").
496. It may be that the Court's main task should be to rein in outliers, which is a form of centralization. See William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. 1283.
497. Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 HARV. L. REV. at 736 ("[M]ost of the Court's major interventions have been to impose an emerging or consolidated national consensus on local outliers.").
498. LESLIE C. GRIFFIN, LAW AND RELIGION-CASES AND MATERIALS at 88 (providing examples of countries where religious freedom has been achieved in the absence of a constitutionally mandated nonestablishment norm).
499. See Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 1823-25 (discussing Madison's "positive pluralism").
500. John Ragosta offers a more nuanced version of this story in the case of Virginia. JOHN A. RAGOSTA, WELLSPRING OF LIBERTY: HOW VIRGINIA'S RELIGIOUS DISSENTERS HELPED WIN THE AMERICAN REVOLUTION AND SECURED RELIGIOUS LIBERTY (2010).
501. He argues that the Anglican political establishment traded religious freedom to gain the support of Presbyterians and Baptists in the run up to the Revolution. See Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 52-62.
502. When the war was over, those dissenting sects sought to consolidate their gains in the face of establishment leaders' efforts to retrench. See Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 115-32.
503. That political effort and the support of Enlightenment intellectuals among the gentry culminated in the adoption of Thomas Jefferson's Statute for Establishing Religious Freedom. See Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. at 133-34, 169.
504. Cf. ROBERT D. PUTNAM & DAVID E. CAMPBELL, AMERICAN GRACE: HOW RELIGION DIVIDES AND UNITES US at 4, 494-95, 523 (describing America's fluid religious environment as the central contributor to religious pluralism and civil peace).
505. See Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 HARV. L. REV. at 662-63 (identifying one focus of Madisonian constitutional design as providing political incentives to comply with constitutional rules).
506. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 230-32 (2004) (noting broad changes in the general public attitude towards the inherent legitimacy of the Supreme Court as the locus of constitutional authority as a reason why astute politicians may hesitate to publicly oppose judicial rulings).
507. James L. Gibson et al., Measuring Attitudes Toward the United States Supreme Court, 47 AM. J. POL. SCI. 354, 364 (2003) (observing that the American public currently bestows a great deal of institutional legitimacy on the Supreme Court).
508. Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 HARV. L. REV. at 733-45 (explaining several benefits to both the Legislative and Executive Branches in having an independent Judiciary with the power of judicial review).
509. See KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY 293-95 (2007) (discussing various political incentives to giving deference to courts and allowing judges to become more assertive).
510. Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 HARV. L. REV. at 742 ("An independent judiciary can also serve the interests of political leaders by taking responsibility for contentious or divisive issues those leaders would prefer to avoid.").
511. See Ellis Katz, Patterns of Compliance with the Schempp Decision, 14 J. PUB. L. 396, 401 (1965) (analyzing the political and social backlash following the Supreme Court's ruling that daily Bible reading in public schools was in violation of the Establishment Clause).
512. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 875 (2005).
513. McCreary Cnty. v. ACLU of Ky., 545 U.S. at 876.
514. Whether the political culture listens is altogether another question. Recall again the recent dispute over the lower Manhattan Islamic center. See Sheryl Gay Stolberg, Obama Strongly Backs Islam Center Near 9/11 Site, N.Y. TIMES, Aug. 13, 2010 at A1.
515. Fred Schauer's discussion about how courts should approach official behavior that is allbut- inevitable but nevertheless unconstitutional is useful here. Schauer distinguishes between "strategies of accommodation" and "strategies of resistance"-which can be mapped onto the approaches I have described above. Frederick Schauer, May Officials Think Religiously?, 27 WM. & MARY L. REV. at 1084.
516. See Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 HARV. L. REV. at 659 (asking why popular majorities in power have infrequently broken constitutional rules when constitutional limitations proved inconvenient to their interests).
517. Cf. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. at 59 (discussing the school prayer decisions of the early 1960s).