Standing, Spending, and Separation: How the No-Establishment Rule Does (and Does Not) Protect Conscience

Abstract

The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity.

The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds us of the importance in our constitutional law and tradition of structural devices that preserve individual liberty and, in so doing, helps to illuminate the real relationship between nonestablishment and the liberty of conscience: Nonestablishment and church-state separation protect conscience by committing us to the idea that there are, and ought to be, multiple, rival authorities. Protecting and respecting the freedom of conscience requires protecting and respecting the competing associations, institutions, and authorities that both clear out the space in which consciences are formed and engage in the formation of consciences. A community that cherishes the freedom of conscience will allow non-state formers-of-conscience to flourish, will acknowledge their appropriate independence, and will not aspire to remake them in its own image.

Keywords: Establishment Clause, First Amendment, Religious Freedom, Religious Liberty, Standing, James Madison, Martha Nussbaum, Conscience, Supreme Court, John Courtney Murray

JEL Classification: K10, K19, K39