The Bloating of the Constitution: Equality and the U.S. Establishment Clause

Abstract

This chapter explores the phenomenon of the constitutional bloating of the Establishment Clause—the expansion of the scope of the Establishment Clause without the formality of an actual judicial ruling so expanding it. Courts that rely on an abstract value or interest in deciding constitutional controversies bloat the Establishment Clause by trading covertly on its political popularity, conceptual malleability, and indeterminacy of meaning. Merely by recurring to or invoking the selected value—always one with vague but deep rhetorical appeal—courts swell the scope of the Establishment Clause without the need explicitly to acknowledge that expansion in their opinions. The problem is not merely that Establishment Clause bloat renders dubious any claims about the predictability of single-value approaches to constitutional adjudication. It is also that judges are thereby licensed to broaden the reach of the Clause by suggestion, allusion, or implication, without openly and clearly stating what they are doing.

The value of equality is by far the most potent and effective instrument of Establishment Clause bloat. This is so for two reasons. First, equality is the overriding legal value of our age—the defining constitutional issue of our time. Simply to invoke the value of equality in favor of any given outcome is frequently perceived as a self-evident and irrefutable justification for it, one that it would be scandalous to question. Second, equality is multivalent and equalities of different types may and often do conflict. Equality of opportunity is not equality of outcome; procedural equality of treatment is not the ambitious equality of “concern” or “respect” for every person’s substantive commitments; and though neutrality is a kind of equality, it is not the only kind. Moreover, there may be internal conflicts even within equalities of the same type. The fearsome cultural, legal, and political might of equality, coupled with the multiplicity and ambiguity of egalitarian meanings, have united to create a singularly effective tool of Establishment Clause bloat.

Part I of this chapter presents the prevailing view of disestablishment and the meaning of the Establishment Clause up until the mid-twentieth century—a general approach that focused not on values or interests but on specific practices and that as a result left the constitutionality of many church-state questions untouched. In Part II, the chapter discusses the rise of value-centered approaches, beginning with church-state separationism and proceeding to egalitarian frameworks, of which non-endorsement and neutrality are the principal examples. Part III examines equality’s role in bloating the Establishment Clause in a few contemporary controversies and concludes by reflecting on the consequent infirmities that are likely to afflict constitutional adjudication in this area.

Keywords: Establishment Clause, Equality, Constitution