On Religious Divisiveness and the Judicial Role
The Volokh Conspiracy staff was variety sufficient to let me weblog this week a couple of current brief paper of mine, “Justice Breyer and the Institution Clause.” On this last publish, I’ll focus on what, in my opinion, is the justice’s signature contribution to the law-and-religion dialog, specifically, his claims that the Institution Clause’s main objective was is the avoidance of “political divisiveness alongside spiritual strains” and that church-state disputes must be determined by unelected judges in ways in which, they hope will promote this objective.
Justice Breyer’s emphasis on the judicial administration of strife, and his view that judges are licensed to invalidate actions of political actors which are predicted to have extreme potential for conflict-creation, animated his last Faith Clauses opinion, a 2022 dissent in Carson v. Makin. This view, although, is mistaken. I ought to confess, although, that I argued as a lot 17 years in the past in an overlong and excessively annotated article that, it seems, didn’t persuade the justice. “That issues about ‘political division alongside spiritual strains’ are actual and cheap,” I wrote, “doesn’t imply that they’ll or ought to provide the enforceable content material of the First Modification’s prohibition on institutions of faith”:
Those that crafted our Structure believed that each genuine freedom and efficient authorities may and must be secured by checks and balances, moderately than standardization, and by harnessing, moderately than homogenizing, the messiness of democracy. It’s each misguided and quixotic, then, to make use of the First Modification to clean out the bumps and divisions which are an unavoidable a part of the political lifetime of a various and free folks and, maybe, finest thought to be a sign that society is functioning properly.
My grumbling however, a trademark of Justice Breyer’s no-establishment opinions is his view {that a} “primary objective” of the Institution Clause is to “keep away from that divisiveness based mostly upon faith that promotes social battle, sapping the energy of presidency and faith alike.” In Van Orden, he concurred within the judgment that the Texas Ten Commandments monument may stay as a result of, all issues thought-about, “as a sensible matter of diploma this show is unlikely to show divisive” and, he believed, a opposite ruling may “create the very type of religiously based mostly divisiveness that the Institution Clause seeks to keep away from.” Within the Courtroom’s more moderen religious-display case, American Legion, he rejected an Institution Clause problem to a big war-memorial cross as a result of, amongst different issues, it had “stood on the identical land for 94 years, producing no controversy locally till this lawsuit was filed.” He dissented in City of Greece from the Courtroom’s ruling allowing the legislative-prayer practices of a New York city board as a result of, in his view, the city’s “prayer observe[,] by doing too little to mirror the spiritual variety of its residents, did an excessive amount of, even when unintentionally, to advertise the ‘political division alongside spiritual strains’ that ‘was one of many principal evils towards which the First Modification was supposed to guard.'”
I proceed to withstand the argument that observations or predictions of political division alongside spiritual strains ought to provide the enforceable content material or inform the interpretation of the First Modification’s Institution Clause. The argument’s roots, family tree, and evolution have been set out, in nice element, elsewhere. A brief model, although, is that, a bit of greater than 50 years in the past, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state applications or insurance policies may excessively—and, due to this fact, unconstitutionally—”entangle” authorities and faith, not solely by requiring or permitting intrusive public monitoring of spiritual establishments and actions but in addition by what he known as their “divisive political potential.” Authorities actions burdened with such “potential,” he reasoned, pose a “menace to the conventional political course of” and “divert consideration from the myriad points and issues that confront each stage of presidency.” Chief Justice Burger asserted additionally that “political division alongside spiritual strains was one of many principal evils towards which the First Modification was supposed to guard.” From this premise in regards to the intent animating the First Modification, he proceeded by the case on the belief that the Structure authorizes courts to guard our “regular political course of” from a specific type of strife and to purge a specific type of disagreement from politics and public conversations about how finest to realize the widespread good.
This political-divisiveness argument went away, for essentially the most half, however Justice Breyer introduced it again. Along with the opinions already cited, the justice affirmed, in his 2005 ebook Lively Liberty, that the “must keep away from a divisiveness based mostly upon faith that promotes social battle” does and will present a “important worth” that should form and direct the train of judicial assessment, together with in Faith Clauses instances. It appears extra probably, although, that judicial efforts to impose tranquility and cohesion—or, a minimum of, to exclude sure types of dissent—truly exacerbate the conflicts, and sharpen the cleavages, {that a} divisiveness-focused inquiry purports to police. In any occasion, it isn’t clear that decreasing or eliminating “divisiveness” in American public life is feasible or fascinating, not to mention the First Modification’s judicially enforceable mandate. Observations and predictions, by judges or anybody else, of “political divisiveness alongside spiritual strains” ought to play no function within the interpretation and utility of the Faith Clauses. Whereas “political divisiveness alongside spiritual strains” is likely to be undesirable and unattractive, and would possibly sign issues within the political lifetime of a neighborhood, and would possibly attend violations of the Institution Clause, it nonetheless ought to play no function within the analysis by judges of Faith Clauses-based challenges to state motion, as a result of what it alerts—i.e., disagreement, pluralism, and the train of spiritual freedom—is, ultimately, constitutionally protected.
To be clear, what Justice Breyer recognized in, for instance, his Carson dissent as a fascinating state of affairs, and a worthy objective, appears each fascinating and worthy: “[T]o permit for an American society with practitioners of over 100 completely different religions, and people who don’t observe faith in any respect, to stay collectively with out critical danger of religion-based social divisions.” The existence of a constitutionally entrenched rule towards an “institution of faith,” appropriately understood, in all probability makes that fascinating state extra prone to come about and persist. At the very least in a constitutional democracy, although, the attraction of that state doesn’t give judges the competence, or the authorization, to pick specific measures, which have been duly put in place or enacted by actors who’re politically accountable to the varied “American society” Justice Breyer invokes, for cancellation, both as a result of their subject material, or the motivations regarded as behind them, or the results that might presumably consequence from them, are regarded as too “divisive.” Because the late Chief Justice William Rehnquist requested, responding to Justice Breyer’s deployment of the political-divisiveness argument, it isn’t “clear the place Justice Breyer would find [the] presumed authority to deprive [citizens] of a program that they’ve chosen however that we subjectively discover ‘divisive.'” Ultimately, Madison’s warning stays as highly effective as ever:
Liberty is to faction what air is to fireplace, an aliment with out which it immediately expires. However it couldn’t be a much less folly to abolish liberty, which is crucial to political life, as a result of it nourishes faction than it could be to want the annihilation of air, which is crucial to animal life, as a result of it imparts to fireplace its harmful company.
