Federalism and American Religion and Morality – Part 2

An earlier article reviewed the first part of a summation by Timon Cline, Editor-in-Chief of American Reformer on the effect of the Everson v. Board of Education decision (1947) on American federalism, and ultimately on American religion and morality. As noted in that article, Cline favors a Christian confessional state, rather than the freedoms of classical liberalism (religion, speech, assembly, etc.), as well as favoring the possibility of laws against blasphemy and heresy.

The greatest danger, at least from the text of the First Amendment, is that these freedoms might be lost at the state level. The Amendment prohibits Congress, not the states, from restricting the freedoms of religion, speech, assembly (interpreted to include association), the press, and the right of petition it guarantees. They are applied to the states under a doctrine of “incorporation,” which holds that the Due Process Clause of the Fourteenth Amendment incorporates them into state law. Whatever one thinks of the reasoning to incorporate the First Amendment into state law, most Americans favor these freedoms at all levels of government, and incorporation of these First Amendment freedoms is unlikely to be overturned.

It is incorporation of the Establishment Clause that Cline currently challenges, and as already noted in the earlier article, there is a strong case that the founders intended to protect, not eliminate, establishments of religion at the state level. An added problem with the Everson decision is that it expanded the meaning of “no establishment” to mean not only “no state church” or “no state religion,” but any government “aid” to any particular religion, or to religion in general (“all religions”). A desired state secularism was here clearly indicated. It is easy to see how radical decisions banning corporate school prayer, Bible reading, the Lord’s prayer, Ten Commandments displays or “moments of silence” in public schools, or challenges to religious displays (e.g. nativity scenes) on public property, the motto “in God we trust” on coins, the “under God” addition to the Pledge of Allegiance, or  other government acknowledgments of religious belief and practice are reasonable, even compelling.  

With these strict separationist decisions and legal claims being made in the decades following the Everson decision, there has been increasing conservative dissent from the decision and its “wall of separation” reasoning. Cline then went on to review this.

Growing Conservative Dissent from Everson and Strict Separationism

Justice Potter Stewart, who dissented from the Abingdon Township v. Schempp and Engel v. Vitale decisions made clear that “the First Amendment was a limitation on the national government.” It was “not a limitation on state autonomy.” Stewart importantly recognized that the battle was not between religion and irreligion, but a battle “between [the] traditional religion of America and the new religion of secularism.” The loser in this battle “is going to be relegated to merely tolerated status.” Cline said that the meaning of “free exercise of religion” from the seventeenth century on was “the public expression of religion without penalty.” On the other hand, “mere toleration” was private observance at home, with no “public recognition or favoritism.” Roman Catholicism was not uncommonly tolerated in England in the seventeenth century, but it was practiced privately indoors.  Somewhat similarly, the Establishment Clause jurisprudence of the mid- and late twentieth century “has meant the privatization of Christianity, and [the] historic traditional practices of America” with no public recognition. It has now become “questionable whether Christian institutions should receive public benefits at all …  even in a competitive market … where there is no favoritism, and certainly … shouldn’t be afforded preference” as would once have been possible.

Cline said that Chief Justice William Renquist “should be credited with inveighing most forcefully against Everson and its progeny.” He maintained that the court majority in Everson and subsequent decisions were guilty of “studiously obscuring the original intent of the First Amendment.” Renquist’s main point was “you can’t again build constitutional doctrine on faulty history.” Justice Thomas “has taken up this mantle” of Renquist in attacking separationist Establishment Clause jurisprudence. Cline said that if Justice Samuel Alito’s reasoning in the Dobbs v. Jackson Women’s Health Organization decision (2022, overturning Roe v. Wade), relying on the original intent of the Constitution, is applied to Establishment Clause jurisprudence “we’ll be in good shape.”

Cline considered whether the Everson decision can realistically be overturned in contemporary America. He said that indications are that this chance could come “relatively soon.” In St. Isidore of Seville v. Drumond, a tie on the U.S. Supreme Court sustained the Oklahoma Supreme Court’s ruling that a religious charter school was unconstitutional. Had Justice Amy Coney Barrett not recused herself from the decision, the Oklahoma decision might have been overturned, further eroding or even explicitly overturning Everson. Despite the failure to overturn the Oklahoma decision, there will be other opportunities. New Hampshire recently removed the terms “sectarian” and “non-sectarian” from statutes governing funding of public projects, opening the possibility of funding of religious schools, for instance.

Cline observed that the idea of church/state separation was workable when the nation was overwhelmingly Christian, and there was general agreement on personal and public morality. Secularization and the cultural revolution of the mid- and late twentieth centuries have revealed what church/state separation amounts to. Secularization has led to dispensing with Christian norms and “radical ideologies that are clearly unpopular, people do not like [them] as filling the role of public religion.” Cline said that “church/state separation clearly did not introduce some nirvana of neutrality, but the opposite.”

Cline believes that the political will to overturn Everson is increasingly there, and for tolerating “divergent ways of life across the country according to the prerogatives and preferences of each state.” This, Cline believes, “is the solution to national divorce, Balkanization, not an instigation of it.” Americans are self-sorting into communities agreeable with their beliefs and values and rejecting “individualized atomization.” Further, “the debate over Everson will emerge sooner” than many might think. “At bottom the issue is one of communal self-determination and freedom.” It is also a matter of “constitutional fidelity, and a rejection of an ostensibly amoral government.” At least in part of the country, the result could be “the revival of American public religion,” as the American founders intended, and believed was necessary for virtuous civil government. He said that this is “the next long-term” conservative legal project.

Questions about Overturning the Everson Decision

Moderator Garrett Snedeker asked if Cline was saying that Everson should be attacked directly, rather than to “chip away” at its progeny, such as Engel v. Vitale (which banned corporate school prayer). Cline said that Everson might be the “weakest link” in the secularist legal chain. Public displays of the Ten Commandments or crucifixes convert few if any people; they are really a statement of community commitment. (Here it should be noted that any requirement for unanimity on state ideals is a preposterous claim, there is no “heckler’s veto” in law).

But we live in a very different country than when the Everson decision was imposed on the nation. Overturning Everson is likely to have the same effect as the overturning of Roe v. Wade. It will result in an “all hands on deck” situation at the state level, as states work out their own religious policies. Liberal states could enact rigid anti-establishment regimes, while conservative states could have state establishments of religion. Cline noted that first Tennessee in 1791, and then “many Western states” adopted anti-establishment clauses in their state constitutions. This is entirely permissible under the U.S. Constitution.

It was asked what the overturning of Everson might mean for religious establishment at the local level. Could there be local as well as state variation on the question of abortion? At the highest level, overturning constitutional decisions makes a national statutory resolution possible, but also allows states and even localities (if not precluded by state law) to choose differently. Cline said, however, that “abortion should be a state issue.” It is, he said, “a moral issue; it’s definitely a religious issue.” If abortion is left to the states, as it is today, “you have to accept that California, for instance, is going to look very different from Florida.”

Cline acknowledged that under a constitutional regime allowing state establishment or disestablishment of religion, an Islamic establishment of religion would be possible at state or perhaps local level. Such cases that might help in overturning Everson might come from Dearborn, Michigan, or Minneapolis. Since the liberal justices on the U.S Supreme Court might be described as “experts in empathy,” such a case might be a promising route to overturn Everson.

It was asked if ending the incorporation of the Establishment Clause would threaten the incorporation of the Free Exercise Clause (introduced by the Cantwell v. Connecticut case in 1940). Cline said he did not think the Cantwell decision would be affected but was unclear as to the meaning of “free exercise” at the time of the founding. His “hunch” was that it was not intended to apply to state law.

This writer is very far from being a legal scholar, but while Cline helpfully underscores that the Establishment Clause was not intended to banish religion from law and the public square (quite the opposite, in fact), there should be great caution in ending the incorporation of the establishment clause. “No establishment of religion” is considered by most Americans to be one of the basic rights guaranteed by the Constitution. It should mean “no state religion,” or “no state church,” (at the national level) which is what it did mean before the Everson decision. Incorporation of the First Amendment into state law is finally based not on the explicit wording of the Constitution, but on due process jurisprudence. People do not want freedoms of religion, speech, the press, etc. eliminated at any level of government. To state the obvious, this would have devastating consequences for religious and social conservatives in liberal jurisdictions.

In the opinion of this writer, Everson should indeed be overturned, because it explicitly expanded the meaning of “no establishment” to mean the separation of state law from religion in general, and increasingly over the decades after Everson to mean separation of religion from the public square. Any decision overruling Everson should clearly state that religious freedom as an individual right, and even an institutional right, is guaranteed at all levels of government by the First Amendment.