Jurisdictional Diversity, Tradition, and the Religion Clauses

Abstract

To the consternation of critics, the Supreme Court in recent establishment clause decisions has turned away from modern precedents and doctrines– the Lemon test, the “no endorsement” test– and has instead prescribed a return to “history” and “tradition,” or to “historical practices and understandings.” The Court is correct to see the modern decisions and doctrines as a departure from earlier American history and tradition. There is, however, one vital aspect of the tradition that the Court has not recognized or revived– namely, the tradition of allowing states and localities the freedom, within broad limits, to develop their own approaches to the relations between government and religion. On the contrary, under the banner of an expansive (and, ironically, intrusively interventionist) “neutrality,” the Roberts Court has followed the example of its predecessors in imposing a uniform constitutional orthodoxy on states– a different orthodoxy, to be sure, but one that may be no less straitening than the secularist/separationist orthodoxy enforced by the Warren and Burger Courts.

Pleas for flexibility and “play in the joints” have come mostly from dissenting justices. But these pleas do not reflect any affirmative commitment to constitutional decentralization or deference to states and localities in church-state matters. Rather, they represent a “second best” or fallback strategy: lacking five supporting votes on the current Court, the separationist jurisprudence of the later twentieth century can no longer be imposed in imperial fashion on states; so the next best thing is to let states themselves persist in following the separationist position if they choose to do so. In this respect, the dissenters’ pleas for flexibility and deference to states bear a resemblance to the post-Brown “states’ rights” rhetoric that was sometimes deployed as a strategy for resisting nationally-imposed racial desegregation.

Neither on the Court nor in the legal academy does there appear to be any serious appreciation for the affirmative virtues of the nation’s older tradition of jurisdictional diversity– of allowing states and localities, within limits, to forge their own distinctive paths through the tangled forests of church and state. This lack of appreciation is unfortunate at a time when polarization, often directly or indirectly related to religion, threatens to tear the country apart. And it exhibits an on-going disregard of tradition, even as the Court aspires to respect and return to tradition.

This article explains how the strategy of jurisdictional diversity was adopted in the Constitution and how that strategy prevailed for the Republic’s first century-and-a-half. The article also explains how that strategy was forgotten or abandoned-- with unfortunate consequences (including jurisprudential incoherence). And in its laudable efforts to correct past errors and return to history and tradition, the Roberts Court has failed to appreciate the centrality of jurisdictional diversity in that tradition. The article discusses how this strategy might be revived, and reflects on the promising but also fraught potential consequences of such a revival.