The Court after Scalia: The 2016 election and the fate of the wall separating church and state

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

Without a doubt, the 2016 presidential election will determine the Supreme Court’s approach to the Establishment Clause for years to come.  Since 1960, seventy-eight years old is the average age at which a Justice has left the bench.  On January 20, 2017, when the next president is inaugurated, there will be three Justices seventy-eight or older: Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer.  The next president, of course, also may have Justice Antonin Scalia’s seat to fill.  Especially if the next president serves two terms, he or she likely will have several seats to fill on the Court.  These Justices will determine the fate of such issues as the constitutionality of prayers in public schools, of religious symbols on government property, of standing to challenge government support for religion, and of government aid to parochial schools.

In 1947, when the Supreme Court in Everson v. Board of Education held that the Establishment Clause applies to state and local governments, all nine Justices accepted the view that the provision was, in the words of Thomas Jefferson, meant to create a “wall of separation between church and state.”  This perspective, which I share, is that as much as possible, government should be secular.  The place for religion is in the private realm of our lives, in our homes, businesses, and places of worship.

Obviously, there cannot be total separation of church and state.  If government did not provide basic services, like police and fire to religious institutions, that would raise serious issues concerning free exercise of religion.  But the goal is that religion should be kept out of government and government should be kept out of religion as much as possible.

Strict separation of church and state is essential to ensure that no one is made to feel an outsider as to his or her government, to avoid the coercion that is inherent when the government becomes aligned with religion, to prevent people from having to provide financial support to religions they do not believe in, and to protect religions from government interference.  All of these goals were articulated by the framers of the Constitution and by the Supreme Court in countless cases.

For decades, the Court followed this strict separationist philosophy.  In the 1960s, the Court in Engel v. Vitale and School District of Abington Township v. Shempp held that prayer – even voluntary prayer in public schools – is unconstitutional. Subsequently, the Court applied this to declare unconstitutional clergy-delivered prayers at public school graduations (Lee v. Weisman) and student-delivered prayers at high school football games (Santa Fe Independent School District v. Doe).  The Court allowed taxpayers to sue to challenge government support for religion (Flast v. Cohen) and greatly restricted the ability of the government to give aid to parochial schools (Lemon v. Kurtzman), especially if it is a type that could be used for religious instruction.  The Court limited religious symbols, like Nativity scenes on government property, if they could be perceived as a symbolic endorsement of religion.

But conservative Justices long have rejected this approach to the Establishment Clause and the idea of a wall separating church and state.  They explicitly take an accommodationist approach, believing that religion should be accommodated into government and government should be able to support religion.  From their view, the government violates the Establishment Clause only if it literally establishes a church or coerces religious participation.

Actually, Justice Clarence Thomas goes even further in limiting the application of the Establishment Clause.  In many opinions, he has expressed the view that this provision applies only to constrain Congress and never to state and local governments. He believes that the Establishment Clause was meant to keep Congress from creating a national church to rival state churches that existed at the time.  For Justice Thomas, nothing done by a state or local government, ever could violate the Establishment Clause.

The conservative view is reflected in the Court’s most recent decision about the Establishment Clause, Town of Greece v. Galloway.  The town of Greece is about 100,000 people and is outside of Rochester, New York.  For an eleven-year period, every month, almost without exception, the town board invited a Christian clergy member to deliver a prayer before its meetings and these usually were explicitly Christian in their content.  The Court, in a five-four decision, split exactly along ideological lines, rejected an Establishment Clause challenge.  Justice Anthony Kennedy wrote the Court’s opinion, joined by Chief Justice John Roberts and Justices Scalia, Thomas, and Samuel Alito.

Justice Thomas, writing only for himself in a concurring opinion, 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.”  In other words, under this view, only “legal coercion” – forcing a person to participate in religious practices or face legal penalties – violates the Establishment Clause.  Justice Elena Kagan wrote the dissent, joined by Justices Ginsburg, Breyer, and Sonia Sotomayor.

What then would it mean for the Establishment Clause if Donald Trump replaces Justices Scalia, Kennedy, Ginsburg, and Breyer?  Along with Chief Justice Roberts and Justices Thomas and Alito, this would mean seven Justices who take the accommodationist approach under which little ever would violate the Establishment Clause.  Conversely, if it is Hillary Clinton who replaces these Justices, there likely will be six Justices to enforce a separation of church and state.

For the Establishment Clause, everything then turns on who fills these vacancies.  Consider several examples:

Prayer in schools:   Conservatives long have disagreed with the Supreme Court’s decisions preventing even voluntary prayer in public schools. In his dissent in Lee v. Weisman, Justice Scalia lamented that the Court was far too concerned with the interests of those who did not want prayer and there was not enough attention to those who want public prayer at government functions, including in the schools.  He said “the Court apparently thinks [prayer] to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room.  For most believers it is not that, and has never been.”  A conservative majority on the Court certainly is likely to allow much more in the way of religious observances and prayers in public schools and even could overrule the earlier decisions imposing strict limits.

Religious symbols on government property:   The accommodationist Justices impose no limits on the ability to place religious symbols – Nativity scenes, Ten Commandments displays, crosses – on government property.  Religious symbols are not the creation of a church or coercion into religious participation.  In 2005, I argued a case in the Supreme Court – Van Orden v. Perry – that involved an Establishment Clause challenge to a six-foot-high, three-feet-wide Ten Commandments monument that sits at the corner between the Texas State Capitol and the Texas Supreme Court.  Justice Kennedy, who takes the accommodationist approach, with hostility in his voice, asked me why my client could not simply look the other way if he objects to the monument.  But a constitutional violation cannot be excused by looking the other way.  Besides, there would be no stopping point.  A city could put a large cross atop city hall and say if you don’t like it, look the other way.

Standing to challenge government support for religion:   The Court also can undermine enforcement of the Establishment Clause by denying anyone standing to challenge violations.  There is a great difference between conservative and liberal Justices with regard to standing in this area.  For example, in Arizona Christian School Tuition Organization v. Winn, the Court in a five-four ideologically divided decision, held that taxpayers lacked standing to challenge an Arizona law that provided tax credits for parents who gave money that went overwhelmingly to support parochial schools.  Similarly, in Hein v. Freedom From Religion Foundation, the Court held, again by a vote of five to four, that taxpayers lacked standing to challenge President George W. Bush using funds from executive revenues to create an Office of Faith Based Programs to facilitate churches, synagogues, and mosques getting federal social service money.  A conservative majority on the Court is likely to limit the protections of the Establishment Clause by further restricting who has standing to sue to enforce it.

Aid to parochial schools:   In Mitchell v. Helms, Justice Thomas wrote an opinion joined by the late Chief Justice William Rehnquist and Justices Scalia and Kennedy, urging the Court to change the law to allow the government to give much greater aid to parochial schools, including aid that can be used for religious instruction.  The only limit, according to Justice Thomas, is that the government cannot discriminate among religions.  But a conservative majority on the Court likely would take this approach and permit unlimited aid to religious schools so long as all religious schools were able to receive the aid.

Simply put, a Trump victory and Trump nominees to the Supreme Court would obliterate any notion of a wall separating church and state.  As this is contemplated, it is important to keep in mind the words of Justice Sandra Day O’Connor: “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?”