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Posted Aug. 18, 2010

Schragger Casts New Light on What Keeps Church, State Separate

Richard Schragger

The U.S. Supreme Court’s jurisprudence on the Establishment Clause has done little in practice to enforce the division of church and state, Professor Richard Schragger says in a forthcoming paper he recently presented at a faculty workshop. Instead, a “constitutional culture” of nonestablishment has helped maintain the separation of religion and government.

Schragger, the Class of 1948 Professor of Scholarly Research in Law, focuses on the intersection of constitutional law and local government law, federalism, urban policy and the constitutional and economic status of cities. His previous scholarship has explored the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion"), local regulation of religion, the role of cities in a federal system, local recognition of same-sex marriage, takings law and economic development, and the history of the anti-chain store movement.

Why is the Establishment Clause controversial among leading legal scholars today?

Legal scholars are debating the same issues that Jefferson and Madison faced in the 18th century: What is the appropriate relationship between religion and the government? The Establishment Clause has always been contested. We see this in present-day debates over the role of religion in public life. For example, the Supreme Court has issued opinions in the last few years about whether governments can sponsor Ten Commandments displays in courthouses or public parks; whether the reference to “under God” in the Pledge of Allegiance violates the rights of nonbelievers; and whether government funding of religious groups that provide social services is permitted under the Establishment Clause.

If the judicial enforcement of the Establishment Clause is in practice irrelevant, as you suggest, what has traditionally kept legislators from creating laws that might strengthen ties between church and state?

Disestablishment was always the result of a political settlement, not a judicial one. One possibility, which Madison seemed to credit, is that the multiplicity of religious groups ensures that no one group is able to dominate the government. Because religious groups are skeptical of each other, they each demand some guarantee that the state is not going to be used to further the interests of one religion. Judicial enforcement of the Establishment Clause is a part of this political settlement, to be sure.  But I argue that the Supreme Court avoids enforcing many of the key tenets of its stated doctrine and that the relationship between church and state is most often worked out in the political culture. How that political culture responds to specific Supreme Court opinions is the topic of the paper.  

You argue that the Supreme Court under-enforces the nonestablishment norm. What should the Supreme Court/judiciary’s role be in shaping the delineation between church and state? How has the court lived up to/not lived up to that role?

The Supreme Court does play a role in setting the bounds between church and state, but it has good reasons for not doing so very aggressively. One reason is practical politics. American political culture tends to be infused with religion, and it would be difficult for a court to resist those cultural forces without losing its legitimacy. Another reason is philosophical. There is a robust debate about whether law needs to be grounded in a religiously based moral code or can stand on a secular political foundation. The Supreme Court does not want to take sides in that debate, which reflects contending aspects of our political and legal tradition. A third reason for under-enforcement is that the court privileges democratic process values like speech and association over and above the nonestablishment norm. This means that the court will bend over backwards to avoid regulating political activities that betray significant religious influence.

A court that is concerned about maintaining its stated nonestablishment doctrine has to be aware of how its decisions affect the political culture. In some instances, that means the court may avoid making decisions (even if correct according to the court’s doctrine) that will generate a political backlash. I argue further that the court should seek to “decentralize establishment.”  A decentralized Establishment Clause doctrine is one that treats local religion-benefiting or -burdening activities with more deference than identical national ones. By dispersing power over who decides the appropriate relationship between church and state, the court can dilute the strength of potential national religious-political alliances. It can also allow more room for the political culture to work out the contours of nonestablishment at the local level.  Denationalizing Establishment Clause disputes may defuse political tension and reduce the incentive for religious groups to seek political power.

How does this paper fit into your overall scholarship?

The argument for decentralization that I have described was first offered in an article called “The Role of the Local in the Doctrine and Discourse of Religious Liberty” that was published in the Harvard Law Review (117 Harv. L. Rev. 1810 (2004)). This current paper is not centrally concerned with decentralization, but rather with the many possible strategies that a self-conscious justice might use to achieve the particular goal of constitutional nonestablishment. In this way, the paper takes a somewhat “external” stance toward judicial doctrine, arguing that it needs to be understood in the context of the wider political and constitutional culture. I am interested in how courts actually enforce constitutional law, and what distinguishes law from politics — a perennial question for constitutional theorists.

What do you hope to explore in your next article/book/etc.?

I work in the fields of church-state and local government law, so I tend to toggle back and forth between them. My next religion project involves assessing the effects of Employment Division v. Smith, the famous “peyote case” that was decided 20 years ago. In that case, the Supreme Court determined that the Free Exercise Clause did not require that religious claimants receive exemptions from otherwise generally applicable laws, even if those laws had a significant impact on their religious exercise. I also have an article coming out in the Virginia Law Review this fall titled “Decentralization and Development.”  This article challenges the claim — made by a number of international development scholars — that the decentralization of political power causes economic growth. My review of the evolution of U.S. local government law leads me to doubt that connection.

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