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Wednesday, May 27, 2009

The symbolic stakes of the Establishment Clause

It seems to me that the Establishment Clause, at least as it is viewed by the Supreme Court, it increasingly about symbolism. What I mean by this is that more and more, the Establishment Clause disputes that tend to make it to the Supreme Court are over religious speech, symbolism, and the like, where no real financial or other "concrete" stakes are involved. I wouldn't be surprised, moreover, if this reflected a trend in the lower courts as well.

For example, if I'm not mistaken (and I'm sure someone will correct me if I am), all of the Supreme Court's Establishment Clause cases since 2004 have revolved around symbolic or verbal endorsements of religion, with the sole exception of Cutter v. Wilkinson (2005). One might even say that this trend reaches back to the 1990s, in which the big cases were primarily about symbolic government endorsement of religion, except that there were a few equal-access cases mixed in (Rosenberger, Lamb's Chapel, etc.) that can't completely be categorized as such, since the parties were fighting in those cases at least in part over funds or access to other privileges that are not purely symbolic in nature. But contrast those two decades with the 1980s, in which the Court spent much of its energy hashing out the minutiae of the Establishment Clause problems involved in channeling funds to religiously affiliated entities.

What to make of this difference? More after the jump.

Now, I'll admit I've identified a fairly small "n" from which to generalize. Nonetheless, I'd guess a few things are involved: first, it simply may not be worthwhile to challenge funding programs that benefit religiously affiliated institutions anymore, since Zelman v. Simmons-Harris, the 2002 Cleveland school vouchers case, seemingly created a situation where governments would almost have to be trying to violate the Establishment Clause for a funding scheme not to pass muster. Second, perhaps we are now, in the age of the culture wars, simply more attuned to and concerned about the symbolic or expressive dimensions of government conduct and its implied designation of insiders and outsiders. Finally, and relatedly, I would like to suggest that a concern about symbolic favoritism toward religion is and really always has been at the heart of the meaning of the Establishment Clause. The Framers themselves agonized over the constitutionality of legislative prayer, Thanksgiving Proclamations, and the like, though no significant concrete or financial benefits from the government flowed from them.

Other thoughts?

Posted by Jessie Hill on May 27, 2009 at 04:46 PM | Permalink


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Two thoughts:

The first comes from Dan Polsby, who taught me First Amendment at Northwestern back in the day: He argued that the Establishment Clause is all about fighting at the outer edges to protect the core. The core is no official national or state religion; the margins are the symbolic fights (in both senses of the term) that you talk about in the post.

The second is to note that the Establishment Clause has come to be used as a defense in the equal-access cases (Rosenberger, Lamb's Chapel, Good News Club). The governed has justified denying access to religious groups as necessary to avoid an Establishment problem; the Court then has done an Establishment Clause analysis in applying strict scrutiny to the restriction on the group's speech.

Posted by: Howard Wasserman | May 27, 2009 5:52:15 PM

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