Does Establishment Clause Doctrine Rest Upon a Mistake?

Professor John T. Valauri*

It has also been suggested that the "liberty" guaranteed by the Fourteenth Amendment logically cannot absorb the Establishment Clause because that clause is not one of the provisions of the Bill of Rights which in terms protects a "freedom" of the individual.(1)

1997 marks the fiftieth anniversary of Everson v. Board of Education,(2) the case that began the modern era of Establishment Clause doctrine by incorporating that provision in the Due Process Clause of the Fourteenth Amendment to apply against the states. Yet no one is throwing a jubilee. For half century on, that doctrine is no more clear and coherent than it was then.

Does Establishment Clause doctrine rest upon a mistake? Is the suggestion that Justice Brennan noted, but rejected, true after all? That is what I will argue. The court has made a categorical mistake, and fifty years of pounding a conceptual square peg into a constitutional round hole has still not succeeded simply because it cannot succeed.

If you're skeptical of the very idea of the nonincorporation of the Establishment Clause, then try this thought experiment. Consider three basic questions one might ask of any right proffered for incorporation. What is the right? Whose right is it? And how is the right incorporated? When you pose these questions of most rights found in the Bill of Rights, the answers (at least on a basic level) are uninterestingly obvious. Take, for example, the Free Speech Clause. The answers to the three questions, in order, are that it protects the right to speak freely, a right possessed by persons. And, conceptually, there are no problems with incorporating it in the Due Process Clause to apply to the states by analogizing it to the like right which persons hold against the federal government.

But if you try this same inquiry with the Establishment Clause, major difficulties and confusions ensue. It cannot be easily stated as a right (as opposed to a prohibition), especially as an individual (as opposed to a states') right. And when you try to incorporate it, you generate the contradiction of the states being benefited and burdened by the same right. Let's take a deeper look to see why this is so.

There exists a telling initial difficulty at the outset. If you search the literature, you will have to look hard even to find any statement of the right guaranteed by the Establishment Clause and incorporated in the Due Process Clause of the Fourteenth Amendment, let alone a clear and convincing statement of that right. Perhaps the best comes, once again, from Justice Brennan's concurrence in Schempp,

[A]mong those rights was freedom from such state governmental involvement in the affairs of religion as the Establishment Clause had originally foreclosed on the part of Congress.(3) The funny thing about Justice Brennan's statement here is that the individual doesn't even appear in this suggested definition. Instead, what we have is a religious immunity linked to a governmental prohibition or disability. This is because there is nothing personal about this right. Justice Brennan's definition states a preference, but it is not a personal preference. Rather, it is what Ronald Dworkin calls an external preference (a preference as to what one wants for others)(4). But no external preference can be a right. It is a necessary, although not a sufficient, condition of righthood that a preference be a personal preference. Black's, for example defines a right as, "[T]aken in a concrete sense, a power, privilege, faculty, or demand, inherent in one person and incident upon another.(5)"

This point is confirmed by the anomalous nature of Establishment Clause standing requirements codified in Flast v. Cohen,(6) which waive the usual requirement of a personal stake in the litigation. Why is this normally essential factor abandoned in the Establishment Clause context? Because it cannot be met in an Establishment Clause claim that is not also in some sense a Free Exercise or Free Speech claim. Why not? Because the Establishment Clause right, whatever else it may be, just isn't an individual or personal right.

It won't help to counter that the personal right involved here is a right to religious liberty, because we already have another clause that protects our religious liberty-the Free Exercise Clause. And that clause does support an individual right to the free exercise of religion. Now, the Establishment Clause right must be either the same as or different from the right to the free exercise of religion. If it is the same, then it adds nothing to that right and fifty years of apparent conflict between the two clauses are an illusion. On the other hand, if it is a different right, it isn't a right to religious liberty and we are back to the problem I raised with Justice Brennan's definition above.

Well, if the Establishment Clause doesn't protect an individual right after all, then whose right does it protect? The answer is that it protects a right of the states, whose religious establishments lingered, in some cases, for decades after the adoption of the Bill of Rights and ended only because of state choice, not federal constitutional mandate. This claim is supported by the text of the clause, which says, "Congress shall make no law respecting an establishment of religion." The most natural reading of this clause, logically and historically, is that it protects state religious establishments (for who else maintained religious establishments in 1791?) against federal interference.

Now, if the states are rightholders under the Establishment Clause, they can hardly owe a duty under it, too. For while the notion of rights implies a correlative notion of duties, they must be held by different parties. Neither an individual nor a state can have a right against or owe a duty to itself. But that is precisely what would ensue if the Establishment Clause is incorporated (as it was by Everson) in the Due Process Clause.

This same contradiction occurs even if I am wrong in arguing that the exclusive role of the Establishment Clause is to protect states' rights. Suppose, for example, that the Establishment Clause has a dual purpose in protecting both individuals and states from federal legislation concerning religious establishments (which is another plausible reading of the clause and argument from history). It still defies incorporation because of the contradiction as to the states that would result.

Incorporation of the Establishment Clause is different from incorporation of the other clauses because it alone involves a right that is, at least in part, a state right. Incorporation of the other clauses works because of the analogous relation both the state and federal governments bear to the individual. Incorporation merely gives constitutional force to that analogy. But there is no analogous relation waiting to be actualized in the Establishment Clause context because the individual stands in a different relation to the state and federal governments under the clause.

Let me close with a disclaimer and an IOU. The reaction to the thesis set out here is likely to range, in many quarters, between perplexity and horror. Perplexity because it sounds so, well, illiberal. Horror because it seems to open the door to religious oppression, everything from tithing to Torquemada. To allay the fears first, although my thesis performs only the negative task of opening a clearing in the thicket of constitutional doctrine, there should be little worry that that space would remain uncovered by constitutional rights. On the contrary, it would doubtless soon be filled in with new precedent, doctrine, and theory as numerous other constitutional clauses (the Due Process Clause, the Free Exercise Clause, and even the Guarantee Clause, for example) provided bases for new growth.

Removal of the perplexity will take something far more substantial and sustained than this article to set it right. It will take a change in prevailing perspective on the part of many contemporary legal thinkers. Much current law and legal theory unthinkingly adopts a political/philosophical worldview that takes itself to be neutral when it is not, democratic when it is not, and in accord with our founding traditions when it is not. My Establishment Clause argument here is only the warmup, then, to the main event, which will be the questioning of the yet unquestioned basic assumptions of the ruling mindset of legal liberalism.

*John T. Valauri is a professor at Chase College of Law , Northern Kentucky University.

  1. School District of Abington v. Schempp, 374 U.S. 203, 256 (1963) (Brennan, J., concurring).
  2. 330 U.S. 1 (1947).
  3. Schempp, id. at 255.
  4. See RONALD DWORKIN, Taking Rights Seriously 234 (Enlarged ed. 1978).
  5. BLACKS LAW DICTIONARY 1324 (6th ed. 1990) (emphasis in original).
  6. 392 U.S. 83 (1961).

2001 The Federalist Society