Religion Clause Federalism: State Flexibility Over Religious Matters and the ‘One-Way Ratchet’

Abstract

A federalism approach to the religion clauses may not always result in the enhancement of individual rights. The decentralization of constitutional authority may allow for increased burdens on religious practice, while it will likely invite states and locales to
support, acknowledge, and collaborate with religion in ways that deviate from core nonestablishment values. Thus, we should approach with caution a renewed call for a federalism approach to the religion clauses.

Recently, Justice Thomas has been the most ardent spokesperson for this impulse, arguing for disincorporation of the Establishment Clause [from the 14th Amendment].

The article reviews the federalism attacks on incorporation since Everson v. Bd. of Education, in which the Supreme Court first extended the Establishment Clause to the states. Those arguments rely heavily on some states’ provisions in their initial constitutions that provided recognition or financial support for certain Christian churches. These arrangements, however, had either been abandoned or become moribund by 1789.

Federalism was an issue in the drafting of the Establishment Clause, but primarily in the sense that all of the proposed amendments reflected a shared desire to limit the powers of the federal government vis-à-vis the states. But an amendment to restrict federal power by prohibiting federal involvement in religious matters is not the same thing as an amendment designed to preserve state establishments.

The normative reasons for greater flexibility for government favoritism of religion at the local level are actually weaker than they are compelling. On the local level, there is usually less religious pluralism with a greater likelihood of a dominant religious group or ethos. Reduced pluralism at the local level often means that those "religious dissenters" are more marginalized politically, coming close to being a true discrete and insular minority. Finally, with a prevailing religious ethos, there is a greater likelihood of a bluffing of social and official conventions about religion, and officials will have more leeway to endorse religion. All of this argues against the lessening of constitutional standards for religious conflicts that occur at the state and local levels.

Few would question the constitutional or even normative value in allowing states to provide greater protection for state infringements on religious practice. Federal standards serve as the floor, and not the ceiling, for protections of constitutional rights. Even Justice Thomas has acknowledged that his federalism approach to the First Amendment is limited to the Establishment Clause, such that states cannot offer less protection than the Free Exercise Clause guarantees and, potentially, they can offer more.

Similar values support a "one-way ratchet" approach for nonestablishment as well. The reasons for not allowing states to provide less protection against government favoritism or support of religion are similar to those that would apply in the free exercise context.

Keywords: federalism, First Amendment, Free Exercise clause