Proof of Politics on the Court: the Establishment Clause (Part II)

Examining the history between government and religion during the Founding era is at best mixed. Many colonial states had government sponsored religions, presidents gave religious oaths at their inaugurations and for Thanksgiving Day, and Congress paid chaplains to deliver prayers to open sessions in both the House and Senate. However, two of our greatest Founding Fathers (Jefferson and Madison), although they participated in some of the ceremonies previously outlined as president, they had strong feelings about keeping “a wall between church and state” (Jefferson). Madison wrote about the constitutionality of chaplains administering prayers in Congress (House and Senate) “In strictness the answer on both points must be in the negative. The Constitution of the U.S. forbids everything like an establishment of a national religion.” Madison was also concerned about the prayer tradition because it is “paid out of national taxes” and he worries that chaplains represent the most popular religions and not minority ones. Madison also said religion and government will “both exist in greater purity, the less they are mixed.”

The decisions delivered by divided Courts over the Establishment Clause are not surprisingly mixed. In Lemon v. Kurtzman (1971) the Court held that both Pennsylvania and Rhode Island laws using taxpayer money to subsidize teacher pay and school supplies (books) in all schools (including private parochial schools) were unconstitutional. The Court held that although the government’s interest to improve education in their states was compelling, still the statutes did not pass the newly established Lemon Test to determine the constitutionality of Establishment Clause cases: “First, the Clause must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhabits religion; finally, the statute must not foster an excessive government entanglement with religion.” The statutes in Lemon failed the “entanglement” provision. In Marsh v. Chambers (1983), the Court held that the century long practice of opening the Nebraska legislature with a prayer by a chaplain was constitutional. Chief Justice Berger did not apply the “Lemon Test” he developed 12 years earlier. However, in Lee v. Weisman (1992) the Court held that a Rhode Island practice of having a chaplain deliver an invocation and benediction prayers (although generic in nature) were unconstitutional. This decision disregarded over a century of national tradition. The Liberal sect distinguished Lee from the Conservative decision in Marsh by saying Lee was coercive and mandatory and Marsh was not (this is not 100% factual). The majority also argues that just because government routinely conducts religious activities it does not make it legal. The Alien and Seditions Act (1798) passed by the Adam’s administration is a good example of a law that would not be ruled unconstitutional today. Justice Scalia in his dissent called this decision “the bulldozer of its social engineering” saying the Court invents a theory of “psychological coercion”. Scalia points out that people at the graduation had no issue participating in the “Pledge of Allegiance”. Scalia also points out the purpose of the Establishment Clause is to stop the coercive power of money between government and religion.

In McCreary County Kentucky v. ACLU of Kentucky (2005) the Court held that a display of the Ten Commandants among other historical documents was unconstitutional. Kentucky failed three times in the Court’s view to portray the Ten Commandants as not just religious, but as an important document in the development of government civil law. The majority held that the display’s intention to be religious was obvious in the first two displays and the third display could not overcome that obstacle. In other words, the third display, no matter how successfully the display showed the connection between civil law, it would never have been found constitutional based on previous intent. That same year, in Van Orden v. Perry (2005), the Court held a Ten Commandments monument outside the Texas Capital was constitutional. In his majority decision Chief Justice Rehnquist dismissed the Lemmon Test. Since the monument was among 20 other monuments displaying other aspects of government, even Justice Breyer joined the majority. Breyer said that it was apparent that the Ten Commandments in this setting is more than just religious in nature.

I brought up the Recess Appointment Case (NRLB v. Canning Noel, 2014) on purpose. In his concurring opinion, but dissenting on methodology, Justice Scalia quotes Marbury v. Madison saying it is the duty of the Court to “say what the law is.” He also quotes Zivotofsky v. Clinton (2012) by saying the role of the Court is not “lessoned” because “two political branches are adjusting their own powers between themselves.” Also Scalia quotes Free Enterprise v. Public Accounting Oversight (2010) about the separation of powers: “its vitality does not depend on whether the encroached-upon branch approves the encroachment.” In the majority opinion Justice Breyer provides a modern historical recital of Recess Appointments made by presidents. Since the FDR era president’s had been encroaching on Senate powers but as Scalia points out it is the duty of the Court to correct the balance of powers between branches of government. Why is this important? Even if history has shown an “entanglement” of traditions between the government and religion, does that make it constitutional? Just as it was the duty of the Court to determine the correct balance of the separation of powers in federal government (for recess appointments), it is the duty of the Court to determine the correct balance between separation of church and state for governments and religion (Establishment Clause). Is it fair for Scalia to take a historical interpretation for the Establishment Clause but a different textual approach for the Recess Appointment Clause (ignoring history), and the Liberal sect to do the opposite (although the liberal sect explores Jefferson’s and Madison’s views on the Establishment Clause)? In other words, the Court is highly inconsistent in its application of the Establishment Clause.