The Establishment Clause is a kind of exception in constitutional jurisprudence.
First, the Establishment Clause, ratified in 1791, was a federalist provision. It prevented Congress from interfering with state religious institutions. This provision suggests that States Candies have established religions and that Congress cannot abolish any of those religions. As everyone knows, several churches existed at the time of its founding. What if tradition means something, then the practices of 1791 are directly relevant to this question.
Second, as Justice Thomas noted, this federalism provision resists incorporation. I have seen no compelling evidence from the debates during the 39th Congress to suggest that the Fourteenth Amendment would place states under the restrictions of the Establishment Clause. (And if the debates over Section 3 have taught us anything, the only relevant speeches that matter for understanding the Fourteenth Amendment are the observations of congressional Republicans over a narrow two-year span.) To be sure, there have been comments about freedom of conscience, perhaps as a privilege or immunity of citizenship, but not about the Establishment Clause in particular – and certainly not about how the Warren Court interpreted the Establishment Clause. And by 1860, all the established churches had been dissolved. But on a practical level, it was never clear to me how the Establishment Clause could be incorporated as a privilege or immunity of citizenship, or even as a liberty protected by the Due Process Clause.
Third, the Establishment Clause doctrine developed in the twentieth century was based on a misreading of Jefferson’s letter to the Danbury Baptist and ignored the overwhelming amount of evidence that others in the founding generation did not share Jefferson’s views. (See Justice Scalia’s dissents in Lee vs. Weisman AND McCreary county.) And there was no attempt to graft it into the way religion was understood in the 1860s.
Fourth, the Establishment Clause has had anomalous effects in other areas of the law, such as the position of “taxpayer” and that of “aggrieved bystander.” (I have referred to these adjustments as “epicycles.”) These doctrines were invented to ensure that there was the possibility of considering cases based on invented doctrines. Legal fictions to the core. In reality, all we are left with is a defense of the unflinching look of Establishment Clause cases. We know what it’s worth.
The Court has begun to correct course. The Court (effectively) annulled the sentence Lemon try inside Kennedy, favoring a “text, history and tradition” approach. No more worries about “purpose” or “involvement.” American Legion cabin cruiser McCreary County regarding public displays of religion. I don’t think there are any new cases of this type in the pipeline. City in Greece cabin cruiser Lee vs. Weisman for cases of public prayer. I’ve seen some arguments that prayer schooling could be in play, if done in a separate, voluntary context. AND Carson v. Do it has largely addressed the financing of religious institutions. Providing financing indirectly, rather than directly, solves most problems. The Blaine amendments stand on precarious ground, even if they are not formally declared unconstitutional.
What remains of the Establishment Clause in the future? I think the cases of actual coercion is still possible. In my opinion, these types of statements have always seemed to be based more on the free exercise doctrine than on the Establishment Clause doctrine. That is, forcing a person to commit to a particular faith is itself a violation of that person’s rights of conscience. Justice Gorsuch’s opinion in Kennedy recognized this principle. This type of argument also works for an atheist, whose system of consciousness is to have no religion.
There are also cases where the government prefers a particular religion or disfavors it. We saw these claims raised during the travel ban litigation: namely that the policy expressed a disfavor (animus) towards Islam. At the time, I thought these statements resonated with the free exercise clause, as in He is standing. That is, the government was burdening the rights of Muslims because of their religion. But obviously, this argument would not work with the travel ban, because noncitizens seeking to enter the United States would not be able to assert an independent free exercise claim. Instead, they had to impose some kind of structural clause against the federal government. This argument never made much sense to me.
In fairness, there isn’t much case law left on the Establishment Clause Kennedy, Carson, City in GreeceAND American Legion. A union of church and state that would have been unconstitutional a generation ago is now constitutionally mandated – said Justice Sotomayor Carson the dissent makes this point directly. And what little doctrine exists is probably best conceptualized as free exercise jurisprudence.
So I ask the question: can the establishment clause be devoid of legal personality? The federal government would remain subject to the clause, perhaps even the modern doctrine. National politics should however be religiously neutral. But states would be subject only to the restrictions of the Free Exercise Clause. The original hypothesis of incorporating the Establishment Clause never made sense. This jurisprudence has generated enormous and never-ending controversy. And it has distorted other areas of jurisprudence. Any concrete reliance interest could be addressed through a properly construed free exercise clause. The only claims that might fall would be those that have no basis in text, history, or tradition.
Readers of this post may roll their eyes, but this is how change begins. Seeds are planted and things grow. There are some studies that defend the incorporation of the Establishment Clause by Kurt Lash and Fred Gedicks. Those might be good places to start thinking about the problem.