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07/10/2017

David Weisberg on Trinity Lutheran
Michael Ramsey

David Weisberg comments:

There has been much discussion of whether the Trinity Lutheran opinionsomehow signals the end of original-public-meaning originalism.  I have expressed my own views as to the fatal flaw in original-public-meaning originalism, but Trinity Lutheran is not in any way illustrative of that flaw.  Rather, that case can best be understood as correctly decided under the Establishment Clause, as that clause has been applied against the States.
 
Importantly, the Establishment Clause does not prohibit only a law “establishing a religion;” it more broadly prohibits a law “respecting an establishment of religion.”  The former prohibition would nullify a law announcing that the State will provide more favorable treatment to one religion than to any other religion, but the broader latter prohibition also nullifies a law announcing that the State will treat one religion less favorably than any other religion.  What is in effect the disestablishment of one particular religion is also a law “respecting an establishment of religion.”
 
What is true of laws dealing with particular religions is, I think, also true of laws dealing compendiously with all religions.  Suppose a State provided funding to private schools for some activity having no connection with the exercise of religion—e.g., the repaving of a school playground—if and only if the school were affiliated with some religious organization and its students were taught, in addition to the state-required curriculum, religious lessons.  (We know that repaving school playgrounds has, in itself, nothing to do with the exercise of religion because Missouri was willing to repave the playgrounds of schools unaffiliated with religious institutions.)  This law would, I think, violate the Establishment Clause, because treating religious institutions more favorably than non-religious ones amounts to a law “respecting an establishment of religion.”
 
The converse is also true: if a State treats religious institutions less favorably than secular institutions with regard to activities having no connection with the exercise of religion, that amounts to the disestablishmentof all religious institutions.  A law that disestablishes all religious institutions falls within the prohibition of a law “respecting an establishment of religion.”
 
And in response to my follow-up  question whether this view makes the Free Exercise Clause superfluous:
 
I don't think it does.  Employment Division v. Smith, e.g., is a case in which a law that on its face makes no reference to religion (unlike the constitutional provision in Trinity Lutheran) nevertheless violates, in my opinion, the Free Exercise clause.  That is, I think Employment Division v. Smith is wrongly decided because, absent a compelling state interest, the state law (unconstitutionally) interferes with the free exercise of religion.  But, in my view, the Oregon law does not in any way violate the Establishment Clause. 
 
To further clarify: when the government acts with the actual intention of favoring or disfavoring a religion or all religions, the Establishment Clause is almost certainly the relevant constitutional provision.  In these cases, the government's law, regulation or practice will inevitably make reference to religion or religious institutions.  But, where the government acts in a facially neutral way and without any intent to favor or disfavor any religion or all religions, the government might nevertheless violate the Free Exercise Clause.  These latter cases, however, would not violate the Establishment Clause.  The Eighteenth Amendment was not adopted for the explicit purpose of advancing or hindering religion, and it makes no reference to religion.  But if, for example, sacramental wine had not been exempt during Prohibition, in my view that would have been a violation of the Free Exercise Clause.  The drafters of the Volstead Act agreed, I think, because they did exempt sacramental wine.