Does the Constitution Permit Government to Favor Religion over Nonreligion? Justice Scalia Says Yes

By MICHAEL C. DORF
Wednesday, Jun. 4, 2008

Speaking over the past weekend at the annual dinner of an Orthodox Jewish group, Agudath Israel of America, U.S. Supreme Court Justice Antonin Scalia claimed that the Establishment Clause of the First Amendment should not be construed to forbid government from favoring “religion over nonreligion.” Justice Scalia has made this point before, both on and off the bench, and he may be correct when he says, as he did before Agudath Israel, that such a prohibition “does not . . . represent the American tradition,” but only if one excludes from that tradition the last forty years of Supreme Court jurisprudence.

The proposition that government may not favor religion over nonreligion does, however, represent the current doctrine of the Supreme Court, albeit with a few exceptions. And of course, Justice Scalia acknowledges as much. He offers his view as a challenge to the modern case law—not a characterization of it.

There is a strong possibility that the next President will have the opportunity to appoint one or more Justices in whose hands turns the balance of power on church-state separation issues (as well as many other issues). Thus, now is an especially good time to evaluate Justice Scalia’s claim.

What the Case Law Says About Favoring Religion Over Nonreligion

In the 1968 case of Epperson v. Arkansas, the Supreme Court unanimously invalidated a state law that forbade public school teachers from instructing their students in the theory of evolution. In the course of his opinion, Justices Abe Fortas wrote,“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” This language has been repeatedly cited and applied by the Court since then.

For example, in the 2005 case of McCreary County v. ACLU of Kentucky, Justice David Souter’s majority opinion, striking down county courthouse displays of the Ten Commandments, referred to the no-favoritism principle as “the touchstone” of the Court’s Establishment Clause analysis.

Even in cases upholding government displays or programs against Establishment Clause challenges, the modern Court has taken care to emphasize that the challenged displays or programs were valid precisely because they did not favor religion over nonreligion. When the Court has upheld religious displays on public property, that has been because the Justices concluded that the display of a religious symbol—such as a crèche or a menorah—was accompanied by the display of secular symbols.

Likewise, Ohio’s program providing poor parents with vouchers for use at private schools was upheld in the 2002 case of Zelman v. Simmons-Harrisbecause, in the words of the late Chief Justice Rehnquist, it was “neutral in all respects toward religion,” permitting parents to choose to redeem their vouchers at secular or religious schools.

The dissenters in Zelman and other cases took issue with the majority’s characterization of the challenged programs or displays as neutral, but the principle that government cannot favor religion over nonreligion has been largely uncontroversial. Criticisms of the neutrality principle generally came from judges or scholars who thought it was too accommodating of religion. For example, they argued that the danger of church-state cooperation was so great that religious institutions should be excluded from funds received by otherwise analogous secular ones. Justice Scalia has now turned that criticism on its head—arguing that the government can actively favor religion over nonreligion.

Do the Court’s Cases Really Require Neutrality Between Religion and Nonreligion?

In his speech to Agudath Israel, Justice Scalia alluded to an argument against the neutrality principle that he had developed more fully in his dissent in McCreary, the Ten Commandments case. He argued that the Court has not faithfully applied a neutrality rule. There are many instances in which government is permitted to favor religion over nonreligion; Presidents routinely seek God’s blessing for the nation; houses of worship receive charitable deductions; and chaplains preside in prisons, the military, and at the opening of legislative (and judicial) sessions.

These examples do not uniformly make Justice Scalia’s point, however. To begin, Presidents have a right to free speech like everybody else. Thus, although nearly all of our Presidents have judged it politically prudent to thank Providence on the nation’s behalf, President Thomas Jefferson refused to issue Thanksgiving proclamations.

In addition, the tax-exempt status of houses of worship is best seen as an application, rather than a rejection, of the neutrality principle. Because secular charitable and civic organizations are tax-exempt if they meet the qualifying criteria, government would be disfavoring religion by denying similar treatment to religious organizations. True, some provisions of the Internal Revenue Code provide benefits to religious institutions that have no direct analogues in secular institutions, but these provisions have rightly been regarded as controversial.

Prison and military chaplains are permissible because prisoners and service members are isolated from their regular communities. By providing chaplains to those who wish to utilize their services, government does no more than accommodate people whose crimes or whose patriotism has deprived them of otherwise available opportunities for worship and religious fellowship.

Justice Scalia is correct, however, that the practice of official legislative prayer, upheld by the Supreme Court in the 1983 case of Marsh v. Chambers, does appear to be an exception to the neutrality principle. There, the Court made no effort to explain how Nebraska’s practice of inviting and paying for a chaplain to open each legislative session with a prayer did not favor religion over nonreligion. Chief Justice Warren Burger’s majority opinion simply invoked the longstanding tradition of legislative chaplains as sufficient evidence of the practice’s constitutionality.

A “Ceremonial Deism” Exception?

Can Marsh be reconciled with the rest of the Supreme Court’s Establishment Clause jurisprudence? Writing nearly two decades before the Court’s decision in Marsh,Yale Law School Dean Eugene Rostow suggested that some public invocations of the Divine could be dismissed as examples of what he called mere “ceremonial deism,”—solemnities that have no real religious content other than to signify the seriousness of the occasion. Justice William Brennan, who dissented in Marsh and who generally favored a strict separation of church and state, tentatively accepted this view in his dissent in a 1984 crèche case, Lynch v. Donnelly. He thought that the words “In God We Trust” on our money and (interestingly enough) “under God” in the Pledge of Allegiance might fit within a fairly narrow ceremonial deism exception to the general no-favoritism principle.

Justice Scalia, however, is not interested in distinguishing a case like Marsh. For him, Chief Justice Burger’s opinion in that case should be the model of all Establishment Clause jurisprudence. Longstanding traditions, under this approach, are, ipso facto, constitutional. And because, in Justice Scalia’s view, we have a longstanding tradition of permitting government to favor religion over nonreligion, the cases invalidating displays or practices under the neutrality principle should be overturned.

Is a Preference for Monotheism Permissible?

There are good reasons to reject Justice Scalia’s characterization of our national traditions. In his majority opinion in McCreary, Justice Souter offered evidence that a principle of neutrality with respect to religion in fact dated back to the Founding era.

But even if Justice Scalia were right about our traditions, it would not necessarily follow that the best interpretation of the Establishment Clause today would be one that rejects neutrality. To see the difficulties in Justice Scalia’s position, it is worth asking, first, what exactly that position is.

Justice Scalia is not an Establishment Clause nihilist. He says he accepts that government may not favor one religion over another. A state law requiring legislative chaplains to be ordained Presbyterian ministers, or a program of school vouchers that could be redeemed at Catholic schools but not Protestant schools, would therefore violate the Establishment Clause, even as Justice Scalia construes it.

However, when one closely examines what Justice Scalia means by non-sectarianism, it turns out to be non-sectarianism among monotheistic religions. He says so explicitly in McCreary, and not just as a matter of what the Founding generation believed. Justice Scalia writes of Twenty-First Century America: “The three most popular religions in the United States, Christianity, Judaism, and Islam—which combined account for 97.7% of all believers—are monotheistic.” Because the holy books of all three of these faith traditions say “that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life,” Justice Scalia concludes that “publicly honoring the Ten Commandments . . . cannot be reasonably understood as a government endorsement of a particular religious viewpoint.”

Justice Scalia does not say exactly why the number of adherents to a particular religion is the measure of sectarianism, but even if it is, note that according to the Pew Forum on Religion and Public Life, taken together, American Buddhists and Hindus outnumber American Muslims. Hinduism is expressly polytheistic while neither Buddhism nor Hinduism regards the Ten Commandments as a holy text. And that is to say nothing of the four million atheists and agnostics, or the more than six million unaffiliated secular Americans, identified by the Pew Forum survey.

The Text of the Constitution Says Nothing About Monotheism

To read into the Establishment Clause a distinction between monotheism and all other belief systems is to play with fire. Some people regard Mormons as polytheists; others consider the use of icons in the Eastern Orthodox Church a form of idol worship inconsistent with monotheism; and still others regard Catholics as polytheists because of the notion of the Trinity and the role of the saints and the Virgin Mary in Catholic prayer. Justice Scalia may be prepared to regard each of these faiths as monotheistic, but the very exercise of examining religious doctrine to see whether it is “monotheistic enough” should be repugnant to the First Amendment.

At the very least, we should demand strong evidence in the Constitution’s text before accepting the notion that the Establishment Clause only forbids government favoritism of any particular religious sect, but permits government favoritism of monotheism in general. In fact, the text strongly suggests nearly the exact opposite.

The Establishment Clause itself forbids any “law respecting an establishment of religion,” but does not say exactly what counts as an establishment, or as a law respecting one. Still, there is no basis in the text for distinguishing between monotheistic and other religions. The prohibition—whatever its precise scope—applies to “religion” in general.

Two other provisions of the Constitution are especially instructive. The last clause of Article VI provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The text does not say that “any monotheist may hold Office” or any such thing, even though the Founding generation was aware of non-monotheistic religions in Asia, not to mention among those native Americans and enslaved Africans who had not been converted to Christianity. To be sure, few if any of the late Eighteenth Century political elite would have imagined that persons of Asian, African, or indigenous descent would hold office, regardless of religion, but the language is striking nonetheless. Even professed atheists and agnostics—also known to the Framers—are eligible for public office, under the plain language of the Religious Tests Clause.

Perhaps even more telling is the language of the Presidential oath set out at the end of Article II, Section 1. It gives the President the option to “swear (or affirm)” his or her intentions to carry out the duties of office. To “affirm” a proposition is the secular equivalent of swearing, and the fact that the document provides this option is a strong clue that the Constitution puts religion and non-religion on an equal footing.

Thus, there is literally nothing in the Constitution’s text to support a distinction between monotheistic and other faiths, while there is strong textual support for the principle that government may not favor religion over nonreligion. That ought to be more than enough to commend the principle to Justice Scalia, who is a self-described textualist.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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