Religion and the Constitution: Volume 2: Establishment and Fairness

CHAPTER 1
Introduction
Two fundamental principles of American liberal democracy are that citizens should be able to freely practice their religion and that government should not establish any religion. This volume, the second of two devoted to an examination of these principles, concentrates on nonestablishment. The wording of the First Amendment of the federal Constitution that embodies that principle is "Congress shall make no law respecting an establishment of religion." States have their own establishment clauses, and the federal provision now applies to states and localities.
An ideal of nonestablishment relates closely to a belief in free exercise, and the fairness of treating religious practices and organizations differently from nonreligious ones figures prominently in the coverage of the two principles. As we found it necessary to consider nonestablishment concerns in volume 1, Free Exercise and Fairness, many chapters in this volume will bring us back to the values of free exercise and the way those values should be realized in legal standards. Nonetheless, various problems about establishment are sufficiently distinctive to warrant this separate volume As in the previous volume, we will look at legislative choices and claims of political philosophy as well as constitutional constraints.
As I have explained in more detail in the first volume, my approach to the subject is grounded on the following three premises: (1) Neither free exercise nor nonestablishment is reducible to any single value; many values count. (2) Sound constitutional approaches to the religion clauses cannot be reduced to a single formula or set of formulas, although we can identify major considerations that should guide legislators and judges. (3) The most profitable way to develop sensible approaches is from the "bottom up"--addressing discrete issues in their rich complexity and investigating conflicting values over a range of issues.
After noting some major issues, this introductory chapter comments on the scope of the federal Establishment Clause, summarizes the undisputed core of impermissible establishments of religion, analyzes the basic values that underlie nonestablishment, and briefly summarizes what follows in succeeding chapters of the book.
SOME TYPICAL ISSUES
Establishment Clause issues have been among the most controversial decided by the Supreme Court in the last half century. It is not hard to see why. The American people remain dominantly religious, with over 90 percent affirming a belief in God, and more than half regularly active in group worship. Rulings under the Establishment Clause generate greater public concern than those under the Free Exercise Clause. Free exercise claims usually arise when legislatures or administrators have declined to make accommodations to religious minorities; most citizens care little about the acceptance or rejection of those claims. When people claim that the government is establishing religion, they typically object to measures that favor dominant religious groups. If courts uphold these claims, they are likely to vindicate some members of discontented minorities at the price of upsetting members of the dominant groups. As a consequence, decisions holding government practices to be invalid establishments tend to be particularly controversial. The Supreme Court's decisions that devotional Bible reading and prayer in public schools are unconstitutional provide striking examples.1 These have proved among the Court's most unpopular rulings in the last fifty years-- comparable in the negative reactions they triggered only to its invalidation of racial segregation2 and its creation of a constitutional right to abortion.3 In many communities, the great majority of parents want school prayer, and some districts have simply continued those practices despite the Court's determinations.4
The display of religious symbols and messages on public property constitutes another significant establishment issue. Most people in a community may welcome an expression of Christian sentiment, such as a cre`che at Christmas time, on public property. They will not favor decisions forbidding such displays. And, when the Ninth Circuit Court of Appeals upheld an atheist father's challenge to his daughter's public school reciting "under God" in the Pledge of Allegiance,5 politicians and citizens alike expressed outrage.6
Of pervasive concern in establishment litigation is the degree of assistance governments may offer to religious organizations. Until recently, financial support for religious groups that supply services that nonreligious organizations also provide, such as hospitals, adoption agencies, and soup kitchens, has produced little controversy.