If you were allowed to use four steps of your choice, valid or not, in a logical argument, you could reach any conclusion you liked. That is why the recent boom in First Amendment litigation is so unbelievably far from the Establishment Clause.
It is certainly hard to find any other explanation for how “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” can be taken to ban crosses, the Decalogue and even Boy Scout meetings on state or local government property, or even historically accurate crosses on county seals (as in Los Angeles). None of them involve Congress, none involve passage of a law and none establish a particular religion.
However, four major changes have generated just such results–a dramatic redefinition of the Establishment Clause’s meaning, a vastly expanded scope of government activities, a radical reinterpretation of the 14th Amendment, and the evolution of the application of the 1976 Civil Rights Attorney’s Fees Awards Act.
The first step was the creation of the “separation of church and state” precedent. Neither the words nor the concept of separation of church and state are contained in “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But the Supreme Court transformed one into the other in Everson v. Board of Education (1947), supposedly based on Thomas Jefferson’s letter to the Danbury Baptists.
Treating Jefferson’s phrase as authoritative Constitutional re-interpretation was mistaken. He was not even in America when the Constitution was written and debated. His letter was written a decade later, at a time when some states still had established religions, without Constitutional challenge. Jefferson’s letter was personal and private; not official. No other phrase from private correspondence has been allowed to override explicit Constitutional language.
Jefferson also quoted the Establishment Clause immediately before “thus building a wall of separation between Church & State.” Since it restricted only Congress and not any religious group, Jefferson’s wall was necessarily a “one way” wall (echoing Roger Williams’ much earlier statement that “When they have opened a gap in the…wall of separation between the Garden of the Church and the wilderness of the world, God has ever made his Church a wilderness”). It kept Congress from intruding into religious matters, but did nothing to prohibit religion’s public influence.
The Baptist inquiry’s main premise was that “the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor.” Jefferson endorsed their view, blatantly inconsistent with current church and state interpretation, which allows government expansion far beyond its delegated Constitutional limits to increasingly crowd out any public influence of faith. And he wrote to specifically allay their fears (based on previous ill-treatment from Connecticut’s Congregationalist church) that a nationally established church might be imposed on them. He was explaining how they were protected by the Establishment Clause, not redefining it into a much different “two way” wall.
Justice Hugo Black’s majority opinion in Everson simply redefined the Establishment clause into a very different separation of church and state precedent, adding “That wall must be kept high and impregnable. We could not approve the slightest breach.” Justice Wiley Rutledge went further, writing that “a complete and permanent separation of the spheres of religious activity and civil authority” was required. This took a restriction preventing the federal imposition of a religion and turned it into a denial of virtually any public role for religion.
Everson also sharply departed from prior Court interpretations. For example, Reynolds v. United States (1878) summarized Jefferson’s meaning as “the rightful purposes of civil government are…to interfere [only] when principles break out into overt acts against peace and good order,” very different from mandating a complete disconnect between church and state.
As Justice William Rehnquist concluded, “the wall is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.” He was right. But instead, other changes have compounded the damage it has wrought.
The second step has been the expansion of federal power far beyond that allowed by the Constitution, which has massively expanded application of the church and state distortion. The Constitution, and especially the Bill of Rights, constrained the federal government to strictly limited, enumerated powers. Those limitations restricted the federal government from infringing on religion, except for the possibility of establishing a federal religion, as was then common in Europe. The Establishment Clause prohibited that. But since then, the federal government has grown so far beyond its enumerated powers (enabled by Supreme Court rulings that violated its central task of defending the Constitution against unwarranted encroachments) that its tentacles connect to virtually every church-related activity and ministry, including health care, aid to the needy, education, rehabilitation programs, etc. The “separation of church and state” is then invoked to crowd religious involvement out of areas government crowded itself into, rather than protecting rights to religious expression against federal encroachment.
The third step involved expanding application of the First Amendment from the federal government alone to the states (and cities, counties and other local government entities, which are creatures of the states), as well. This happened in spite of the fact that states were acknowledged to have powers with regard to religious matters. For instance some state-established churches continued long after the Constitution’s ratification (e.g., the Congregational Church was established in Connecticut until 1818, and from 1780 to 1833, Massachusetts not only required church membership, but allowed those churches to tax their members). This fact was also recognized by President Jefferson in his second Inaugural Address, when he stated, “[religion’s] free exercise is placed by the Constitution independent of the powers of the general government, I…have left them, as the Constitution found them, under the direction and discipline of State or Church authorities,” which cannot be squared with current interpretation supposedly based on his views.
The First Amendment’s ban on a federally “established” church or federally imposed worship was expanded to every government body by creative judicial interpretation of the Reconstruction Era’s Fourteenth Amendment (See Raoul Berger’s work on the Fourteenth Amendment for a thorough treatment). The result is that any state or local government act with an even tenuous connection to something with religious overtones can now trigger an Establishment Clause lawsuit, despite the First Amendment’s explicit application to the federal government alone. The result is a plethora of government interactions with every religious issue, extending even to depictions involving religious imagery in any way related to government property, which provide plenty of lawsuit material despite their vast distance from establishing a religion.
These three steps have turned the Establishment Clause on its head, undermining the moral basis of our liberties, expressed in George Washington’s admonition that “Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” But yet another little-recognized step has expanded the crusade against any religious connection to any government activity.
The fourth step was the 1976 Civil Rights Attorney’s Fees Awards Act and its subsequent evolution into something very different. It was originally applied to poor clients in racial discrimination cases, so they would not be deterred from seeking justice. But the meaning of civil rights has since been broadened to include suits seeking to enforce the current mistaken “separation of church and state” view of the First Amendment. As a result, non-profit organizations such as the ACLU, which represent clients claiming First Amendment violations for free, are now entitled to their lawyer’s fees from the government’s they are suing, if they win at any level of the proceedings. Since these fees can be very large, to the point of threatening smaller government jurisdictions with bankruptcy if they choose to defend their actions, the ACLU can thereby steamroll them into capitulation. Some governments have even given in when law firms offered to defend them for free, because of potential lawyer’s fee awards.
Such attorney’s fee settlements have included $540,000 in the Roy Moore case in Alabama, $280,000 in the Mount Soledad case, $950,000 in the San Diego Boy Scout case, and $1 million (negotiated down from $2 million) against a small Pennsylvania school district in the Kitzmiller case. The result is that every conceivable link between any government body and religion, however preposterous (e.g., the tiny cross on the Los Angeles County seal), can be used to make that jurisdiction an involuntary ACLU donor. Government bodies, faced with paying plaintiff attorney’s fees, as well as their own, out of strapped budgets, are being extorted into submission. And the cash cow of successful fee awards (effectively a tax on any government that won’t sever every connection to religion) are leveraged into still more lawsuits.
The Constitution defended citizens from being forced to participate in or support a federally established church, offering an important protection against government abuse. But subsequent interpretations and precedents have resulted in “transforming the constitutional guarantees against discrimination on grounds of religious differences into provisions that necessitate it,” in scholar Philip Hamburger’s words. That result, based on Constitutional distortion and extortion, should be of great concern to anyone who values our country’s founding vision, embodied in our Constitution.
(Gary Galles is a professor of economics at Pepperdine University in Malibu.)