Establishment Clause ban on hostility / inhibition / disapproval

[Volokh, Eugene]

        I thought I'd focus on just one part of Marty's most recent
message, because it's one that strikes me as less discussed than the
others.

        Marty suggests that the Court's dicta that say that the Estab Cl
bans hostility towards religion as well as favoritism, inhibition of
religion as well as advancement, and disapproval of religion as well as
endorsement are indeed simply dicta, and should be rejected.  And on one
level this is certainly a plausible argument:  These do look mostly like
dicta; I know of no case that has actually turned on this; and formally
neither the Court nor lower courts are bound by them.

        But does it matter that these statements, even made "purely for
[their] rhetorical effect," were made in immensely controversial cases,
and quite likely tended to -- and were, I suspect, intended to -- in
some measure defuse opposition to the decision?  The first appearance I
see of this is in Schempp (1963), the second school prayer case, where
the Court said -- in something that I believe has ended up as a headnote
in both the S. Ct. and U.S. reports -- "We agree of course that the
State may not establish a 'religion of secularism' in the sense of
affirmatively opposing or showing hostility to religion, thus
'preferring those who believe in no religion over those who do
believe.'"  (I cite this not because I think it disposes of the Columbia
Union College case, which it doesn't, but to show that it is the flip
side of what the Court clearly did hold in Schempp, which is that
affirmatively supporting or showing endorsement of religion through
school prayer is unconstitutional.)

        I don't know the history of the post-Schempp debate, but this
surely smacks to me of an attempt to make the decision more palatable to
the public; I can't say that inclusion of this text made the difference
between passage or failure of a school prayer amendment, but I do
suspect that it might have had some such effect.  Certainly if I were a
school prayer opponent arguing against the amendment, I would have cited
this language as evidence that the Court was in fact being evenhanded,
and not anti-religious.

        Then we see in Lemon, another deeply controversial decision, the
Court again using the wording of evenhandedness (the "principal effect
must be one that neither advances nor inhibits religion"; and again it
seems to me that what legitimacy Lemon enjoyed must have been in some
measure bolstered by this evenhandedness.  (Also, for whatever it's
worth, this again makes it into a headnote in both the S. Ct. and U.S.
reports.)  What's more, Lemon stressed that it was no bold departure in
theory, even if it was (by my reckoning) the first big case to strike
down more or less evenhanded assistance programs.  Rather, Lemon cited
Allen, which in turn cited Schempp, which said "The test may be stated
as follows: what are the purpose and the primary effect of the
enactment?  If either is the advancement or inhibition of religion then
the enactment exceeds the scope of legislative power as circumscribed by
the Constitution.  That is to say that to withstand the strictures of
the Establishment Clause there must be a secular legislative purpose and
a primary effect that neither advances nor inhibits religion [citing
Everson]."

        And while I believe Everson didn't put matters in terms of
"advancement or inhibition" as such, its famous words at 330 US at 15-16
likewise spoke the language of evenhandedness:  The government cannot
"force nor influence a person to go to or to remain away from church
against his will or force him to profess a belief or disbelief in any
religion."  Going on to its justification for upholding the program, the
Court against speaks the same language:  The "Amendment *requires* [not
just permits] the state to be a neutral in its relations with groups of
religious believers and nonbelievers; it does not require the state to
be their adversary.  State power is no more to be used so as to handicap
religions, than it is to favor them."

        On we go to the creche cases, another deeply controversial set
of cases, and to O'Connor's opinions there.  And again we see the
language of evenhandedness, with a focus on endorsement *or
disapproval*.  From the earlier modern Estab Cl cases to the latest, the
rhetoric of evenhandedness persists.  I don't endorse all these cases; I
think the primary effect test, for instance, is incoherent; but what's
important is that whenever the Court enunciates a test or a framework,
it incorporates at least facially evenhanded language within it.

        So all this brings us to the question:  To what extent is the
Court, and the Estab Cl hawks who endorse the Court's hawkish Estab Cl
decisions, estopped from denying the force of the dicta in those
decisions?  To what extent is it the case that these statements, even if
mere "rhetoric," cannot be ignored precisely because the rhetoric of
evenhandedness may have been a big part of the reason why the decisions
have been accepted?

        I should say, by the way, that I'm not completely certain of the
answer; I generally do think that the distinction between dictum and
holding is important (though here the force of the dictum is increased
at the very least by its repetition), and if I were thinking about
matters from first principles, I'd probably more quickly take the view
that discrimination against religion is banned by the Free Exercise
Clause rather than the Establishment Clause.  And yet it does strike me
as quite troubling that a court may *politically* support its decisions
with 50 years of rhetoric and then reject the rhetoric as mere rhetoric.


Marty Lederman writes:

> 2.  Eugene notes, correctly, that, "[t]he Court has time and again
> said that
> the prohibitions of the *Establishment Clause* cut both ways.  The
> government
> may not show favoritism *or hostility* to religion.  The Establishment
> Clause
> bans conduct that has the primary effect of benefiting *or hindering*
> religion.  The government may not express endorsement *or disapproval*
> of
> religion."
>
> But just because the Court's said it doesn't make it so.  This
> rhetoric of a
> "balanced" EC has its genesis, I believe, in Lemon itself.  To my
> knowledge,
> it's always been invoked purely for its rhetorical effect, and in no
> case has
> the Court ever determined that the EC actually prohibits some form of
> discrimination against religion.  (Lukumi would have been the obvious
> occasion
> for the Court to do so.)  I seem to recall an old article of Doug
> Laycock's in
> which he argued that the anti-discrimination prohibition in fact
> dervies from
> the FE Clause, not the EC, and that therefore such rhetoric is mere
> window-
> dressing.  Is anyone aware of any case holding that disrimination
> against
> religion violates the EC, or any persuasive argument in the literature
> in
> support of that conclusion?  Does anything at all turn on this
> question --
> i.e., is there any case of discrimination against religion (not
> sect-based
> discrimination) in which the EC might do some work that the FE Clause
> does
> not?  Would it, for instance, permit taxpayer plaintiffs to sue to
> enjoin such
> discrimination, pursuant to Flast?
>