Virginia's Bizarre Claim to the Supreme Court: Asserting that the Establishment Clause Does Not Constrain the States

By MARCI HAMILTON
hamilton02@aol.com
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Friday, Feb. 11, 2005

Today, the State of Virginia took a very unusual position in an amicus curiae (friend-of-the-court) brief it filed in an important case currently before the U.S. Supreme Court.

The case is Cutter v. Wilkinson. It raises the issue of the constitutionality of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). Directly at issue is that part of RLUIPA that relates to "institutionalized persons" - in other words, prisoners.

Many commentators believe RLUIPA is unconstitutional - and as I have noted in a prior column, I am among them. The State of Virginia is among RLUIPA's critics, too - but one of the reasons it has given in its brief is, to put it kindly, bizarre.

According to Virginia, the states should have broad latitude to institute religious programming in the state prisons, without federal government intervention like RLUIPA. This latitude exists, Virginia claims, because, in its view, the Establishment Clause does not wholly apply to the states. (Virginia also includes in its brief some meritorious federalism-based, congressional power arguments, but these are beyond the scope of this column.)

While the federal government must wholly separate church and state, in other words, Virginia's argument is that the states are not under the same obligation. The states, Virginia says, can connect church and state as closely as they desire - preaching in the prisons, for instance, if they so choose.

Lately, other states have done just that: States are experimenting with religious prisons (a movement that began in the Florida prisons) and with religious prison wings (the "God Pods" in Iowa).

For those who are suddenly envisioning fifty state theocracies, especially in this era of religious political power, let me assuage your concerns. Florida's partial-Establishment-Clause theory is entirely wrong. Granted, this theory has been embraced by one Supreme Court Justice, but it is unlikely to gain traction.

The Source of Virginia's Argument: A Dissent by Justice Thomas

The theory doubtless stems from a dissenting opinion authored by Justice Clarence Thomas in a case the Court resolved last year.

The case was the "Pledge of Allegiance" case -- Elk Grove Unified School Dist. v. Newdow -- and the majority of the Court held that Michael Newdow lacked standing to bring the Establishment Clause challenge. But in dissent, Justice Clarence Thomas questioned whether the Establishment Clause even wholly applies to the States in the first place.

Now, it's true that the Establishment Clause, by its language, applies only to the federal government: It says that "Congress shall make no law respecting an establishment of religion," and does not mention the States at all.

Still, the Supreme Court for decades and the overwhelming majority commentators have concluded that the Fourteenth Amendment wholly "incorporated" this provision - as it did many other provisions that originally applied only against the federal government, including the First Amendment's Free Exercise Clause and Free Speech Clause. If the term "Congress" is no barrier to incorporation of the rest of the Amendment, its plain language simply cannot carry the freight such a textualist argument imposes on it. Thus, this is a debate over history and principles, not language.

As I will explain below, the incorporation view is well-grounded. Justice Thomas's view, conversely, is idiosyncratic. He believes the Establishment Clause is only partially applicable against the states.

By comparison, other idiosyncratic views voiced by Justice Thomas - such as his view that the Commerce Clause ought to be radically limited by the original intent of the framers - have failed to gain traction among courts or practitioners. Not so, however, with this view.

Unsurprisingly, Justice Thomas's view that the States need not comply fully with the Establishment Clause has been embraced by the States themselves. So unless the Court roundly rejects Virginia's claim in its opinion in Cutter, we can expect other states to present the same poppycock in the future, as well.

Incorporation: How the Establishment Clause Became Applicable to the States

As noted above, the original Establishment Clause did apply only to the federal government. That was the case because anti-federalist states wanted to preserve their religious establishments. (Incidentally, however, none of these were single state churches; all were power-sharing arrangements between various religions. In addition, no state had any establishment after 1833, even though they might have, the reason being that the values underlying the Establishment Clause had become increasingly apparent to the states.)

But the Fourteen Amendment profoundly transformed the Constitution - and one major way it did so, was to put the States under many, though not all, of the same constraints that had always applied to the federal government. When a right or constraint was newly applied against the states as a result of the Fourteenth Amendment, it was said, in legal parlance, to be "incorporated" against the states.

How can we decide whether the Establishment Clause was one of the constraints that was incorporated by the Fourteenth Amendment? We should ask a number of questions to decide that. Among them is this one: What values were intended to be protected by the Establishment Clause?

What Values Was the Establishment Clause Intended to Protect?

The current Establishment Clause jurisprudence is a collection of principles that reflects its diverse roots in the theological viewpoints of the Baptists, Puritans, Quakers, and the Presbyterians, among others. These values include the functional separation of church and state in the society; a government prohibition on preferring one religion over another; a right against government coercion of belief; government tolerance of all religious belief (though not all religious conduct); and the necessity of embracing the principles of democratic republican governance even if one is a member of church that employs very different governing principles. The variety of values drives certain elements in the legal community crazy, but consistency is the hobgoblin of little minds.

What so many in the United States who are currently trying to protect religion from disestablishment fail to understand is that it was largely founded by religious principles (all of them Christian). That means that it is hard to argue disestablishment is anti-Christian, unless, of course, one has selective historical memory.

The Establishment Clause demands a set of principles, rather than just one, because it is a structural provision that in fact separates power between church and state. It does not effect the full separation of church and state from one another, obviously, nor should it, but it does divide their powers.

The U.S. Constitution privatizes religion, a move that is likely responsible for the impressive diversity of peacefully coexisting believers in the U.S. When one attempts to keep these two most authoritative structures of human existence in separate spheres, they will inevitably maneuver to overtake or suppress the power of the other. That's a fact of human life, and is evident whether the actor is part of the government or a religious organization. Hence, one principle is not enough to maintain their distinct identities or their constructive roles in the society.

Justice Thomas concedes that some basic Establishment Clause principles - but only three of them - do apply against the states. The first is that the state cannot literally coerce religious entities, and by coercion, he means put people in jail for failing to believe what the realm demands. The second is that it cannot invest a religious entity with governing authority. The third is that government may not enact preferences for any one faith, privileging it above the others to, for example, create an official state religion.

But these principles do not exhaust the reach of the Establishment Clause; far from it. For instance, under Justice Thomas's view, states may compel recitation of the Pledge of Allegiance, despite its "under God" language, because that does not violate any of the three principles.

(While the third principle might seem to be violated, Justice Thomas's view is apparently that endorsing monotheism, and forcing recitation of one's loyalty to it, is not the same as endorsing, say, Catholicism, and forcing recitation of one's loyalty to that religion in particular. It is a distinction without a difference.)

The Establishment Clause encompasses much more than these three principles. Importantly, it was intended not just to stop the government from taking over religion, but also to stop religion from taking over the government. Both sides of the two-sided Establishment Clause sword need to be kept sharp, even today.

Consider the Florida program at issue in Cutter. There, the religious prisons, purportedly open to all faiths, are in fact 99% Christian in programming. In this instance, the idea of a religion - specifically, the Christian religion - taking over a government institution is hardly farfetched. It is also coercive, though not in Thomas's sense: Prisoners have no choice whether to stay or leave the system, so if the most desirable prison or part of a prison happens to include Christian programming, they are going to subject themselves to the religious environment, regardless of their beliefs. The same can be said for the "God pods," in Iowa, run by Charles Colson's prison fellowship ministry, which are prison wings that feature state-sponsored proselytizing by one faith.

The state is not coercing prisoners to be Christian, perhaps, but it certainly is seducing inmates to live in a Christian environment. Justice Thomas might not find this objectionable, but the Establishment Clause, as historically interpreted by the Supreme Court, definitely does. For the states to now mount a bandwagon to obtain more power to establish religion than they currently hold is to betray the religious origins of the Establishment Clause. Ironic, isn't it?


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is hamilton02@aol.com. Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), will be published this spring.

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