The Volokh Conspiracy
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The Volokh Conspiracy team was kind enough to let me blog this week about a recent short paper of mine, "Justice Breyer and the Establishment Clause." In this final post, I will discuss what, in my view, is the justice's signature contribution to the law-and-religion conversation, namely, his claims that the Establishment Clause's primary purpose was is the avoidance of "political divisiveness along religious lines" and that church-state disputes should be decided by unelected judges in ways that, they hope will promote this purpose.
Justice Breyer's emphasis on the judicial management of strife, and his view that judges are authorized to invalidate actions of political actors that are predicted to have excessive potential for conflict-creation, animated his final Religion Clauses opinion, a 2022 dissent in Carson v. Makin. This view, though, is mistaken. I should confess, though, that I argued as much 17 years ago in an overlong and excessively annotated article that, it appears, did not convince the justice. "That concerns about 'political division along religious lines' are real and reasonable," I wrote, "does not mean that they can or should supply the enforceable content of the First Amendment's prohibition on establishments of religion":
Those who crafted our Constitution believed that both authentic freedom and effective government could and should be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people and, perhaps, best regarded as an indication that society is functioning well.
My grumbling notwithstanding, a hallmark of Justice Breyer's no-establishment opinions is his view that a "basic purpose" of the Establishment Clause is to "avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike." In Van Orden, he concurred in the judgment that the Texas Ten Commandments monument could remain because, all things considered, "as a practical matter of degree this display is unlikely to prove divisive" and, he believed, a contrary ruling could "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid." In the Court's more recent religious-display case, American Legion, he rejected an Establishment Clause challenge to a large war-memorial cross because, among other things, it had "stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed." He dissented in Town of Greece from the Court's ruling permitting the legislative-prayer practices of a New York town board because, in his view, the town's "prayer practice[,] by doing too little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to promote the 'political division along religious lines' that 'was one of the principal evils against which the First Amendment was intended to protect.'"
I continue to resist the argument that observations or predictions of political division along religious lines should supply the enforceable content or inform the interpretation of the First Amendment's Establishment Clause. The argument's roots, genealogy, and evolution have been set out, in great detail, elsewhere. A short version, though, is that, a little more than 50 years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessively—and, therefore, unconstitutionally—"entangle" government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities but also through what he called their "divisive political potential." Government actions burdened with such "potential," he reasoned, pose a "threat to the normal political process" and "divert attention from the myriad issues and problems that confront every level of government." Chief Justice Burger asserted also that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect." From this premise about the intent animating the First Amendment, he proceeded through the case on the assumption that the Constitution authorizes courts to protect our "normal political process" from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good.
This political-divisiveness argument went away, for the most part, but Justice Breyer brought it back. In addition to the opinions already cited, the justice affirmed, in his 2005 book Active Liberty, that the "need to avoid a divisiveness based upon religion that promotes social conflict" does and should provide a "critical value" that ought to shape and direct the exercise of judicial review, including in Religion Clauses cases. It seems more likely, though, that judicial efforts to impose tranquility and cohesion—or, at least, to exclude certain forms of dissent—actually exacerbate the conflicts, and sharpen the cleavages, that a divisiveness-focused inquiry purports to police. In any event, it is not clear that reducing or eliminating "divisiveness" in American public life is possible or desirable, let alone the First Amendment's judicially enforceable mandate. Observations and predictions, by judges or anyone else, of "political divisiveness along religious lines" should play no role in the interpretation and application of the Religion Clauses. While "political divisiveness along religious lines" might be undesirable and unattractive, and might signal problems in the political life of a community, and might attend violations of the Establishment Clause, it nonetheless should play no role in the evaluation by judges of Religion Clauses-based challenges to state action, because what it signals—i.e., disagreement, pluralism, and the exercise of religious freedom—is, in the end, constitutionally protected.
To be clear, what Justice Breyer identified in, for example, his Carson dissent as a desirable state of affairs, and a worthy goal, seems both desirable and worthy: "[T]o allow for an American society with practitioners of over 100 different religions, and those who do not practice religion at all, to live together without serious risk of religion-based social divisions." The existence of a constitutionally entrenched rule against an "establishment of religion," correctly understood, probably makes that desirable state more likely to come about and persist. At least in a constitutional democracy, though, the appeal of that state does not give judges the competence, or the authorization, to select particular measures, which have been duly put in place or enacted by actors who are politically accountable to the diverse "American society" Justice Breyer invokes, for cancellation, either because their subject matter, or the motivations thought to be behind them, or the effects that could possibly result from them, are thought to be too "divisive." As the late Chief Justice William Rehnquist asked, responding to Justice Breyer's deployment of the political-divisiveness argument, it is not "clear where Justice Breyer would locate [the] presumed authority to deprive [citizens] of a program that they have chosen but that we subjectively find 'divisive.'" In the end, Madison's warning remains as powerful as ever:
Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.