Symposium: Dismantling the wall that should separate church and state

Erwin Chemerinsky is the Dean and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law

Incrementally rather than dramatically, the Roberts Court is eroding the notion of a wall separating church and state and allowing much more religious involvement in government and government support for religion.   In Town of Greece v. Galloway, the Supreme Court, in a five-to-four decision, essentially held that there is an exception to the Establishment Clause of the First Amendment for prayers before legislative sessions.  The Court’s decision is inconsistent with any theory of the Establishment Clause except one that gives little meaning to the separation of church and state.

During the years of the Rehnquist Court, there were four Justices – Rehnquist, Scalia, Kennedy, and Thomas – who took an accommodationist approach to the Establishment Clause and said that the government acted unconstitutionally only if it literally established a church or coerced religious participation or gave assistance that favored some religions over others.  Under this view, little ever violates the Establishment Clause.

There is every reason to believe that there are now five Justices who take this position, with Roberts and Alito joining Scalia, Kennedy, and Thomas.  Both liberals and conservatives thus believe that there are likely five votes to overrule the test from Lemon v. Kurtzman, which provides that the government cannot act with the primary purpose or effect of advancing or inhibiting religion.

But in its now almost nine years, the Roberts Court has not made a sweeping revision in the law of the Establishment Clause.   Rather, in every Establishment Clause case, the Court, in a five-to-four decision, has rejected the constitutional challenge and upheld the government’s action, with Justices Scalia and Thomas always writing separately to urge a more radical change.

In Salazar v. Buono, the Court reversed a federal court of appeals decision that found a cross in a federal park to violate the Establishment Clause.  Justice Kennedy wrote the opinion for the plurality on fairly narrow grounds, focusing on a federal law that transferred ownership of the land where the cross was located to a private group.   Justices Scalia and Thomas concurred in the judgment and said that no one is injured by a religious symbol on government property and no one should have standing to sue to challenge its presence.

In Arizona School Tuition Organization v. Winn, the Supreme Court held that taxpayers lacked standing to challenge a state law that provided tax credits for donations to school tuition organizations, which in turn overwhelmingly sent the funds to Catholic and evangelical Christian Schools.  In an opinion by Justice Kennedy, the majority distinguished Flast v. Cohen and held that, although taxpayers have standing to challenge government expenditures as violating the Establishment Clause, they lack standing to challenge tax credits.  Justices Scalia and Thomas concurred and urged the overruling of Flast v. Cohen.

This pattern repeated itself in Town of Greece.   Justice Kennedy wrote a plurality opinion, joined by Chief Justice Roberts and Justice Alito, upholding the prayers before the monthly meetings of the Town of Greece despite the fact that they were almost always delivered by Christian clergy and were usually explicitly Christian in their content.  Justice Kennedy emphasized the long history of clergy-delivered prayers before legislative sessions.   In Marsh v. Chambers, the Court had approved prayers where there was no reference to Jesus Christ, but Justice Kennedy said that legislatures were not limited to such non-sectarian prayers.

Justice Kennedy’s plurality opinion left open the possibility of challenges to legislative prayers only in very limited circumstances.  He wrote that:  “Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation.”

As in the earlier cases, Justices Scalia and Thomas would have gone much further in allowing religious involvement in government.  In an opinion concurring in part and concurring in the judgment, Justice Thomas, writing only for himself, reiterated his view that the Establishment Clause should not apply to state and local government at all.   In a part of the opinion joined by Justice Scalia, Justice Thomas argued that an Establishment Clause violation would require “actual legal coercion . . .—not the ‘subtle coercive pressures’ allegedly felt by respondents in this case.”

There is thus a striking pattern to the Roberts Court’s Establishment Clause cases.   The Court has rejected all of the Establishment Clause challenges, allowing much more religious involvement in government and government support for religion.  Justice Kennedy always writes the lead opinion, joined by Chief Justice Roberts and Justice Alito.  Justices Scalia and Thomas always want to go even further in lessening the protections of the Establishment Clause.

Rather than obliterating the wall separating church and state all at once, the Roberts Court’s opinions are dismantling it brick by brick.   The clear message from Town of Greece v. Galloway is that prayers before legislative sessions are allowed, no matter how much they are sectarian and from a particular religion.   In fact, the practice in the Town of Greece was exactly what Justice Kennedy said could still violate the Establishment Clause:  a “pattern of prayers over time” that “proselytize[d]” and “betray[ed] an impermissible government purpose.”

From 1999-2008, the town invited exclusively Christian ministers, most of whom included explicitly Christian content.  Some elaborated on Christian theology, discussing “the saving sacrifice of Jesus Christ on the cross” and “the plan of redemption that is fulfilled in Jesus Christ.”  After complaints were filed, for four months the town invited non-Christian clergy.  The town then reverted to inviting only Christian clergy and their prayers usually had explicitly Christian content.  The pattern of prayers could not be clearer in advancing Christianity.  This certainly should have been enough to be deemed “proselytizing” and an “impermissible purpose.”

As Justice Kagan explained in a powerful dissent, under any theory of the Establishment Clause this should be unconstitutional.   The notion of a wall separating church and state, a metaphor first used by Thomas Jefferson, is that our government should be secular.   The Town of Greece’s practice is the antithesis of such separation of church and state.

Even under the more relaxed approach to the Establishment Clause which finds a violation only when there is government endorsement of religion, the Town of Greece acted unconstitutionally. As the Second Circuit concluded, the town’s prayer practice had unconstitutionally affiliated the town with Christianity.  The Establishment Clause of the First Amendment is violated when a town so clearly links itself to Christianity, by inviting only Christian clergy to deliver prayers for a long period of time and with those prayers being explicitly Christian.

In fact, even under the coercion test – unless it is limited to legal coercion as Justice Thomas advocated – the town acted unconstitutionally.  The prayers were delivered to an audience of local citizens, including both children and adults, who attended meetings at the town board’s invitation or direction.  Children’s athletic teams were invited to be publicly honored for their successes, police officers and their families attended to participate in oath-of-office ceremonies, people came to speak to the board about local issues of great personal importance, and would-be business owners came to request zoning permits from the board. All of these people — Christians and non-Christians — were asked to stand and bow their heads for many of these prayers.  But Muslims, Jews, and nonbelievers cannot in good conscience participate in a prayer to Jesus Christ — and doing so shouldn’t be the price of civic participation.

As I read the opinions in Town of Greece v. Galloway, I realized once again how the results would have been different if only Justice O’Connor had not left the bench and been replaced by Justice Alito.  Justice O’Connor emphasized that the central purpose of the Establishment Clause was to keep anyone from feeling like an outsider (or an insider) as to his or her government.  Explicitly Christian prayers before every month’s town board meetings inevitably make those of other religions feel that they do not belong there and that they are outsiders.

Not long before she left the bench, Justice O’Connor declared:  “At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate . . . .Why would we trade a system that has served us so well for one that has served others so poorly?”

It is deeply unfortunate that the majority of the Court fails to understand this basic insight and is so greatly lessening the protections of the Establishment Clause of the First Amendment.