Secular purpose

[Andrew Koppelman]

I've taken a couple of days to consider the objections that have been
offered to my defense of the "secular purpose" prong of Lemon v. Kurtzman.
After reflection, I've decided that there is a strong case for the secular
purpose requirement, but that I did not make that case as clearly as I
might have.  Let me try again.

To begin with, let's be clear what the requirement is not.  It is not a
prohibition on religiously motivated people engaging in politics.  It does
not assume, as Doug Laycock alleges, that "any citizen who thinks about
moral matters must think in terms that are acceptable to secularists."
People can support a law for whatever reason they like; the religious are
not second-class citizens in this regard.  This distinguishes religious
from racist motivation:  an ideal political process is one in which none of
the decisionmakers are racist, whereas there is nothing wrong with a
political process in which some of the decisionmakers have religious views
and allow those views to influence their political positions.  The secular
purpose test isn't about legislative inputs, but legislative outcomes.  (I
know that there's some language to the contrary in the majority opinion in
Edwards v. Aguillard, but I disagree with that language.)

What is and should be prohibited, in my view, is a law that has no
plausible secular purpose - a law the purpose of which, obvious on its
face, is the effectuation of a purpose that is only intelligible within a
particular, sectarian religious tradition.  (I don't think this view is
idiosyncratic with me.  John Rawls, for instance, has in his recent writing
made clear that he regards public reason as a constraint on legislative
outputs rather than legislative inputs, and that it is legitimate for
citizens to make religious arguments about public issues.)

The clearest illustration of a law with no secular purpose that I can think
of was supplied by Michael McConnell a few days ago:  a law that makes it a
crime to eat anything on the day of Ramadan.  I don't think we have to
resolve the question, which Michael correctly deems intractable, of whether
the non-Moslem who goes hungry because of this law is being forced to
participate in a religious ritual.  It's enough to say that the law has no
secular purpose.  Another case, equally easy, is a law that prohibits the
teaching of Darwin's theory of evolution to schoolchildren.  A bit harder
are the Sunday-closing laws, which have some secular justifications; here
I'd be inclined to invalidate because less restrictive alternatives (such
as a law requiring each business to close on one day a week, without
specifying the day) were available.

What is wrong with the Ramadan-fasting law or the anti-Darwin law?  In
earlier postings, I endorsed the following argument by Kent Greenawalt:

A liberal society . . . has no business dictating matters of religious
belief and worship to its citizens.  It cannot forbid or require forms of
belief, it cannot preclude acts of worship that cause no secular harm, it
cannot restrict expression about what constitutes religious truth.  One
needs only a modest extension of these uncontroversial principles to
conclude that a liberal society should not rely on religious grounds to
prohibit activities that either cause no secular harm or do not cause
enough secular harm to warrant their prohibition.

Kent Greenawalt, Religious Convictions and Political Choice 90-91 (1988).

Everyone here appears to agree that the third sentence is the controversial
one.  And I'll agree that Greenawalt is a bit opaque about how he gets from
the first two sentences to the third.  Let me try to fill the gap.

The key premise lies in the first sentence:  "A liberal society . . . has
no business dictating matters of religious belief and worship to its
citizens."  I understand the content of this to go beyond the examples
recited in the second sentence (all of which involve coercion in one or
another form), and to include a restriction on government speech.  It would
be illegitimate for a state to erect a crucifix in front of the state
capitol.  It would also be illegitimate for the state to carve, over the
entrance of the capitol, "JESUS IS LORD" or "THE POPE IS THE ANTICHRIST."
The state simply is not permitted to take an official position on disputed
matters of theology.

What the second sentence emphasizes is a corollary of the first:  if
government cannot declare a religious orthodoxy, then it cannot coercively
enforce a religious orthodoxy.

If the state may not speak in a way that asserts a controversial
theological position, and it cannot coercively enforce a religious
orthodoxy, then a fortiori it may not exercise its powers of coercion in a
way that implicitly asserts a controversial theological position.  The
problem with the Ramadan-fasting law or the anti-Darwin law is that these
coercive laws implicitly assert the correctness, respectively, of the
Islamic command to fast on Ramadan and the Genesis story of creation.  They
are unconstitutional for two reasons, corresponding to the reasons implicit
in Greenawalt's first two sentences.  They are improper because of their
expressive content.  They coercively enforce a religious orthodoxy.

This interpretation of the secular purpose requirement bears a certain
resemblance to the no-endorsement test proposed by Justice O'Connor.  That
test has difficulties that are familiar to many on this list.  So let me
explain how my argument avoids those difficulties.

O'Connor proposes that the secular purpose prong of Lemon be understood to
mean that laws or governmental practices are invalid if they create a
perception that government is endorsing or disapproving of religion.  Lynch
v. Donnelly, 465 U.S. 668, 688-92 (1984) (O'Connor, J., concurring).  This
follows, O'Connor argues, from the purposes of the first amendment. "The
Establishment Clause prohibits government from making adherence to a
religion relevant in any way to a person's status in the community." Lynch,
465 U.S. at 687; see also ibid, p. 692.  For this reason, the government
may not take actions that send a symbolic message that nonadherents to any
particular religion are "outsiders, not members of the political
community." Ibid, p. 688.

Steven Smith has persuasively shown that this test is incoherent, because
the cultural meaning of arguably religious messages is likely to be
ambiguous and contested. Any particular governmental action - the granting
of conscientious objector status, say - will or will not constitute
illegitimate endorsement, depending on whether it is appropriate for
government to take that substantive action.  Different people in society
will have different views about the substantive issues, and their opinions
about whether endorsement has occurred will follow from those substantive
views.  The idea of government neutrality on which O'Connor relies is
parasitic on some substantive vision of what it's appropriate for
government to do; neutrality cannot be a substitute for that substantive
vision. See Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions:
 Establishment Neutrality and the 'No Endorsement' Test, 86 Mich. L. Rev.
266 (1987); see also Michael W. McConnell, Religious Freedom at a
Crossroads, 59 U.Chi.L.Rev. 115, 148-51 (1992).

My argument presses on the limitations of Smith's generally valid point.
O'Connor's test seems to invalidate some laws that have a plausible secular
purpose, so long as an objective observer (and O'Connor has had trouble
explaining who that is) would infer that a religion was being endorsed.  My
test is harder to satisfy, and therefore less indeterminate, than
O'Connor's:  the person challenging the law has to prove a negative.  He
must persuade the court that there is *no* sane way of interpreting this
law's purpose without attributing to the state the endorsement of a
sectarian religious view.  If that can be shown - and the Ramadan and
Darwin laws teach us that it sometimes can be shown - then the law is
unconstitutional, because the government is improperly "dictating matters
of religious belief and worship to its citizens."

Ed Gaffney helpfully referred me to Franklin Gamwell's review of
Greenawalt, 8 J. L. & Religion 461.  There's a passage in Gamwell that
endorses the distinction, already present in Greenawalt, between religious
convictions that are implicit in public policy and explicit government
sponsorship of such convictions:

That public policy should imply the most persuasive comprehensive
convictions is indeed the political intent of public debate about them, but
the activities of the state can never include an *explicit* decision about
which comprehensive convictions are valid.  In other words, the state may
never teach either religion or nonreligion, and which comprehensive
convictions are in truth implied by the decisions which the government does
take is itself always left to the public debate.

Id. at 472.  This seems to me right as a general matter, with the proviso
that in rare cases (the Court has only struck down a law on secular-purpose
grounds a few times), a state activity's meaning will not be reasonably
debatable; it will constitute "an *explicit* decision about which
comprehensive convictions are valid."  The decision will be explicit rather
than explicit because no one will reasonably be able to interpret the
decision in any other way.  Questions at the margin will turn on the range
of meanings that natives of the culture can reasonably ascribe to the
government action in question.  (Similarly, the question of explicit
endorsement will turn on what native speakers of English think that, e.g.,
"The Pope is the Antichrist" means.)  The Ramadan-fasting statute declares
the theological correctness of Islam as clearly as if the government were
to declare Islam the official religion of the United States.

This understanding of the secular purpose requirement does politically
disempower religious persons to some extent.  But so does each of the
constraints cited by Greenawalt in the first two sentences of the quoted
passage.  So does any constitutional provision which limits the range of
permissible political outcomes.

Bob Destro argues that if a law must have a secular purpose, "the right of
petition is meaningless, and the Establishment Clause is converted into a
weapon available only to those factions that can convince a complicit (or
ignorant) judge that their brand of morality is "secular" in its
character."  This looks to me a lot like one argument that was made against
the Colorado Amendment challenged in Romer v. Evans.  The Colorado Supreme
Court had held that the amendment impaired gays' "right to participate
equally in the political process." Evans v. Romer, 854 P.2d 1270, 1285
(Colo. 1993). The difficulty with any argument of this sort is that pointed
out by Justice Scalia:

[I]t seems to me most unlikely that any multilevel democracy can function
under such a principle.  For whenever a disadvantage is proposed, or
conferral of a benefit is prohibited, at one of the higher levels of
democratic decisionmaking (i.e., by the state legislature rather than local
government, or by the people at large in the state constitution rather than
the legislature), the affected group has (under this theory) been denied
equal protection.

Romer v. Evans, 116 S.Ct. 1620, 1630-31 (1996).  Scalia is right to deem
this principle "ridiculous," id. at 1631, and it is expressly repudiated by
the Court, which declares that it affirms the judgment "on a rationale
different from that adopted by the State Supreme Court."  Id. at 1624.
Bob, it seems to me that your quarrel is with constitutionalism in general,
not with my version of it.  Under even the modest view of the establishment
clause in the first two sentences of the Greenawalt quote, above, a
petition to make Anglicanism the established church of the United States,
or to make felonious the celebration of the Catholic Mass, will not be
addressable by the legislature.  Does your right of petition principle
embrace those cases?  How about the Ramadan or anti-Darwin law?



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Andrew Koppelman
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu
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