100 Pages Posted: 27 Apr 2001
The central contention of this paper is that the Court's Establishment Clause jurisprudence can best be understood from a political perspective. The title of the article signals the intent. We analyze Establishment Clause decisions as if they were political. More fully, we analyze Establishment Clause decisions as if they were products of political contests among various interest groups, both religious and secular, with competing positions on the proper relation of church and state. Looking at the Establishment Clause in this way is deeply informative. It yields a more complete and coherent account of modern constitutional doctrine than can be derived from the conventional sources of text, history, and structure. Indeed, one good reason to analyze the Establishment Clause in this way is the lack of plausible alternatives.
To preview the argument briefly, the modern Establishment Clause dates not from the founding but from the mid-twentieth century. At that time, the Supreme Court adopted a rhetoric of radical separation of church and state. That rhetoric had as its defining application and chief consequence a constitutional ban against aid to religious schools. Later, the Court also moved to purge religious observances from public education. These two propositions - that public aid should not go to religious schools and that public schools should not be religious - make up the separationist position of the modern Establishment Clause.
We begin with the ban against aid to religious schools. The modern no-aid position drew support from a broad coalition of separationist opinion. Most visible was the pervasive secularism that came to dominate American public life, especially among educated elites, a secularism that does not so much deny religious belief as seek to confine it to a private sphere. Additionally, the ban against government aid to religious schools was supported by the great bulk of the Protestant faithful. With few exceptions, Protestant denominations, churches, and believers vigorously opposed aid to religious schools. For many Protestant denominations, this position followed naturally from the circumstances of their founding. It was strongly reinforced, however, in the nineteenth and early twentieth centuries by hostility to Roman Catholics and the challenge they posed to the Protestant hegemony. In its political origins and constituencies, the ban against aid to religious schools aimed not only to prevent an establishment of religion but also to maintain one.
Today, much has changed. Anti-Catholic animosity has faded, and the crucial alliance between public secularists and Protestant believers has collapsed. Public secularists, whose devotion to public schools has declined in recent decades, are now divided over the question of funding religious alternatives. More importantly, so are the Protestant faithful. While mainline Protestant denominations continue to demand strict separation of church and state, fundamentalist and evangelical opinion has largely deserted that position. Today, fundamentalists and evangelicals have moved from the most uncompromising opponents of aid to parochial schools to its unlikely allies. As a consequence, strict separationism is opposed today by true believers of many faiths, not just Roman Catholics (and a few other sects with a history of religious schools), but also by the nation's largest Protestant denomination (Southern Baptists) and by the great weight of opinion among the variety of churches called fundamentalist and/or evangelical.
Against this new coalition, we predict, the constitutional barrier against financial support of religious schools will not long stand. We see the current judicial uncertainty on this subject not merely as a continuation of the blurred and shifting margins that have plagued the field for years, but as a crack that goes to the core. This prediction does not depend (except in timing) on a guess about future appointments to the Supreme Court. It arises rather from the current realignment of the political forces historically arrayed against constitutional toleration of aid to religious institutions. Old coalitions have collapsed, and new alliances are demanding change. We think it likely that the emerging political combination in favor of government aid to religious education will prove, sooner or later, to be irresistible.
We do not, however, see a similar fate for secularism in public education. In contrast to the political revolution on school aid, no new coalition has formed to overturn the Court's decisions outlawing school prayer and Bible reading. Religious exercises in public schools are endorsed today, as they were forty years ago, by the Catholic leadership and by conservative evangelicals and fundamentalists. They are opposed today, as they were forty years ago, by public secularists, mainline Protestant clergy, and most Jews. Moreover, the increasing religious pluralism of American society reinforces the secularist position. While the growing religious diversity of private schools makes government funding of them more "neutral" and hence more acceptable, the growing religious diversity of students in public schools makes it more and more difficult to envision any religious exercises that would not favor some faiths and offend others. We therefore predict that the constitutional prohibition against prayer in the public schools to remain more or less intact.
The argument proceeds in three stages. Part I describes the two policies that have dominated the modern Establishment Clause. Part II places those doctrines in historical context. It traces the political antecedents of the separationist policies and identifies the constituencies of their support. Part III addresses the current instability in Establishment Clause doctrine and analyzes the underlying realignment of political forces that are now deploying in favor of radical change.
JEL Classification: I29, K39
Suggested Citation: Suggested Citation
Jeffries Jr., John C. and Ryan, James E., A Political History of the Establishment Clause. Michigan Law Review, Vol. 100, November 2001. Available at SSRN: https://ssrn.com/abstract=267786 or http://dx.doi.org/10.2139/ssrn.267786