On Rights and RestraintsCarl H. Esbeck March/April 1999 Individual Rights and Structural Restraints
The difference between rights and structure within the overall Constitution is commonplace. For government to avoid violating an individual right is a matter of constitutional duty. On the other hand, for government to remain within its structural restraints is a matter of confining legislation and the actions of its officials to the scope of its delegated powers. A structural clause, to be sure, often has a laudable effect on individual rights when the branches of government (legislative, executive, and judicial) stay within their authority. Nevertheless, the immediate object of constitutional structure is the management of power: a dividing, dispersing, and balancing of the prerogatives of sovereignty. "Separation of powers" and "federalism" are mere shorthand for familiar forms of constitutional structure running horizontally and vertically, respectively, within the three-branch federal government and the multilayered system of national, state, and local governments.
The Establishment Clause is not an individual rights clause, but a power-limiting clause. Even in such archetypal no-establishment cases as those concerning religion in public schools, such as Engel v. Vitale and McCollum v. Board of Education, the Establishment Clause is applied not to relieve individual complainants of religious coercion or religious harm, but to keep in proper relationship two centers of authority: government and religion. This is why in popular discourse it is said that the Establishment Clause is about "church/state relations" or the "separation of church and state." It is in this primary role--when invoked to keep the spheres of government and religion in the right relationship to each other--that the Establishment Clause broke free from older European patterns and made its most unique and celebrated contribution to the American constitutional settlement.
The Establishment Clause can be a means of redress for personal harms, but only when the injury is not religious in nature, such as economic harm or damage to property, constraints on academic inquiry by teachers and students, or restraints on freethinking atheists. Even in these situations, however, no-establishment is not transformed into a rights clause with the assigned task of protecting property, academic freedom, and freedom from religion. Rather, these injuries are remedied only consequentially to the Establishment Clause fulfilling its structuralist role. In these cases the role was limiting the power of government in the civil sphere to prefer religious practices over secular concerns. In such a paradigm the no-establishment principle orders, even in the absence of individual harm, the respective competencies of government and religion.
From time to time religious claimants have sought to enlist the Establishment Clause into serving as a rights-protecting clause, but the Supreme Court has rarely followed that course. In Larson v. Valente the no-establishment principle was applied by the Court to entertain a claim involving discrimination among religious groups and hence redressing allegations of religious harm. But this was most unusual and probably wrongheaded, for Larson could just as easily--and more sensibly--have been grounded in the Free Exercise Clause. Unlike the Establishment Clause, the Court utilizes the Free Exercise Clause to protect against personal religious harms and thus to safeguard individual religious rights.
To illustrate, if Congress in 1789 had not proposed an Establishment Clause for enumeration in the Bill of Rights, a Larson-type claimant could still have secured relief from official persecution by filing suit under the Free Exercise Clause. But without an Establishment Clause numerous other claimants, such as the department store in Estate of Thornton v. Caldor, Inc., the tavern in Larkin v. Grendel's Den, Inc., and the public school teacher desirous of expanding the science curriculum in Epperson v. Arkansas, could not have successfully pleaded a free exercise claim because they suffered no religious harm.
The literature is often uneven when using the terms "religious freedom," "religious liberty," and "religious rights." This essay equates all three, and the terms are used in the sense of an individual right that protects against personal religious burdens or harms. Such a right is secured by the Free Exercise Clause. Moreover, the redressing of personal harm to an individual's religious belief or practice is the Free Exercise Clause's only function. This makes sense because the clause is, by its terms, about prohibiting the free exercise of religion rather than unbelief.
The Free Exercise Clause says nothing about prohibiting injuries such as encumbered use of one's property (Thornton) or hindered academic inquiry (Epperson). Nor does the clause prohibit the forced taking of oaths by freethinking atheists (Torcaso). The latter is true because to suffer a personal religious harm an individual must first profess a religion. It follows that the Free Exercise Clause is not an all-purpose conscience clause. It protects religiously informed belief and practice, nothing more. People can incur injuries other than religious harms, as in economic harm, loss of academic freedom, or coercion to profess a religious belief when they are agnostic or atheistic. These are individual harms, to be sure, but not religious harms. They are left to be remedied, if at all, as a by-product of the Establishment Clause.
This is not to say that the Establishment Clause has nothing to do with religious liberty writ large. Moreover, structural clauses do indirectly bear on the protection of individual rights, including religious rights. By delimiting and qualifying governmental sovereignty, structure often redounds to further secure individual rights. Conversely, although rights clauses have as their immediate purpose the protection of individual freedom, they have a consequential impact on governmental power.
But this happy symmetry between structure and rights is no reason to conflate the two. The object of a structural clause is to set compensating checks on the powers of a modern nation-state, checks that must be honored whether or not individual complainants suffer concrete "injury in fact." Because the Establishment Clause is a structural clause rather than a rights clause, it is vital that it be understood as such and be so applied.
In the hands of the Supreme Court, then, the task of the Establishment Clause is independent of the Free Exercise Clause's protection of individual religious rights. Neither clause is subordinate or instrumental to the other. Nor is there "tension" between the clauses, as if they sometimes pulled in opposite directions causing the courts wrongly to balance one against the other and thereby having to choose between them. This makes no sense. It is not consistent with the First Amendment's text (neither clause has primacy over the other), nor are such conflicts inherent to the religion clauses and thereby logically unavoidable. The religious rights of individuals and the ordering of relations between government and religion--while complementary, not contradictory- are altogether different enterprises.
Locating the Boundary Between Religion and Government
Proper relations between religion and government (or "church and state") are codified in the text "make no law respecting an establishment of religion." This structuralist limitation casts the Establishment Clause in the role of boundary keeper. In setting out to locate that boundary, it is a useful reminder that the "keeper's" task is to restrain government, not private individuals, not churches, and not religion. Thus the role of no-establishment is not to protect people from other people. Nor is it to protect minority religions from majority religions. Nor is it to protect the nonreligious from the religious. Nor it is to protect government from the church. Rather its sole object is to limit government, including governmental decisions to improperly ally with religion.
Identification of the precise topics that fall within the meaning of the restraint "make no law respecting an establishment of religion" necessarily entails substantive choices. That boundary has been disputed for over 2,000 years, so it would be naive to suppose that there is an easy formula for determining "what is Caesar's and what is God's." From the perspective of an elder statesman after a full life of public service, James Madison said: "I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collision and doubts on unessential points."
On the other hand, the difficulty should not be exaggerated. The differences are often, as Madison said, on "unessential points." In the vast number of cases a ready reference to the historic Western tradition as received on this side of the Atlantic will yield a result on which there is considerable agreement. It is the hard cases that get most of the attention (e.g., aid to K-12 religious schools), thereby leaving the impression that the overall task of boundary keeping is hopelessly conflicted.
The Supreme Court has not left the lower courts, legislators, and litigants without guidance on this all-important question. The cases indicate that government does not exceed the restraints of the Establishment Clause unless it is acting on topics that are inherently religious. The Supreme Court has found that prayer, devotional Bible reading, veneration of the Ten Commandments, classes in confessional religion, and the biblical story of creation taught as science are all inherently religious. Hence, by virtue of the Establishment Clause, these topics are off limits as objects of legislation or any other purposeful action by officials. Likewise, when government is called on to resolve doctrinal questions or related matters bearing on ecclesiastical polity, clerical office, or church discipline and membership, these subject matters are outside the competence of government.
Closely related to these case-by-case designations of what is inherently religious and what is arguably nonreligious is the rule that the Establishment Clause is not violated when a governmental restriction (or social welfare program) merely reflects a moral judgment, shared by some religions, about conduct thought harmful (or beneficial) to society. Accordingly, overlap between a law's purpose and the mores of well-known religions does not, without more, render the law one "respecting an establishment of religion." Legislation concerning Sunday closing laws and teenage sexual abstinence counseling, laws that limit the availability of abortion, and rules on interracial dating and civil marriage are subject matters that the Court has deemed not inherently religious.
The Supreme Court has successfully avoided two mistakes when drawing the boundary between government and religion. First, the Court has not identified churches and other religious organizations (e.g., educational, charitable, and mission societies) and then assumed that religion is actually confined to those institutions. Churches and their affiliated ministries do not monopolize religion. Religiously grounded convictions and obligations show their influence in every area of life, not merely in church affairs. Hence, Establishment Clause violations can occur notwithstanding the complete absence of involvement by churches, mission societies, religious schools, and the like.
Second, the Supreme Court has not set out to separate government from all that could be said to be religious. Rather, the separation is of government from matters inherently religious. A separation of government from all that is religion or religious would result in a secular public square, one hostile to the public face of religion. The Founders intended no such regime. There are extreme voices claiming for the Establishment Clause the ordination of a new secular order, one that would thereby cabin religion in the "private" spaces of home and chapel. Still others lament that the Court has promulgated a right to a freedom from religion. But the cases will not bear either of these readings.
Various justices of the Supreme Court, in short statements, have sought to encapsulate a definition of the boundary between government and the inherently religious. Justice Brennan wrote that the common thread in the Court's analysis of whether legislation transgresses the Establishment Clause restraint "is whether the statutes involve government in the `essentially religious activities' of religious institutions." Just a few years earlier Justice Harlan said "that where the contested governmental activity is calculated to achieve nonreligious purposes otherwise within the competence of the state, and where the activity does not involve the state so significantly and directly in the realm of the sectarian," then constitutional restraints are not exceeded. Justice Frankfurter set the no-establishment boundary in structuralist terms with these words: "The Establishment Clause withdrew from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief. Congress may not make these matters, as such, the subject of legislation, nor, now, may any legislature in this country."
Each of these formulations will do, for they point to the same basic distinction between subjects that are inherently religious and subjects that are grounded in the morals, traditions, and cultural values of the political community and which can be explained in those terms. This approach, of course, unapologetically draws from the historic Western tradition as received in the American colonies.
"Inherently religious," then, means those exclusively religious activities of worship and the propagation or inculcation of the sort of tenets that comprise confessional statements or creeds common to many religions. The term includes, as well, the supernatural claims of churches, mosques, synagogues, temples, and other houses of worship, using those words not to identify buildings, but to describe the confessional community around which a religion identifies and defines itself, conducts its collective worship, divines and teaches doctrine, and propagates the faith to children and adult converts. A structuralist view places these matters--being in the exclusive sphere of religion--beyond the government's jurisdiction.
Of course, by relegating the Establishment Clause restraint to actions on matters inherently religious, the Supreme Court has not resolved all of the problems in defining the boundary between religion and government. There will always be boundary disputes, because the task of determining what is "inherently religious" generates tension between the Western tradition and the deeply held beliefs (religious and secular) of others. A structuralist Establishment Clause is not substantively neutral. Indeed, substantive neutrality is impossible, because every theory of government/religion relations necessarily takes a position on the nature and value of organized religion and on the purpose and direction of modern government.
The first line of defense for the Supreme Court's position is that its church/state boundary is the constitutional settlement. As such, it is not to be tampered with under the guise of "judicial updating of our living Constitution." In the end, however, if the Court's government/religion boundary is to have staying power, it has to be defended not because it is neutral or noncontroversial, but because it is good. Indeed, it is a threefold good: it maximizes individual religious choice, protects the institutional integrity of religious organi-zations, and minimizes government-induced religious factionalism within the body politic.
Under the structuralist settlement, then, the Establishment Clause is not a silver bullet for winning (or ending) the culture war. Although the government/religion boundary--policed by the no establishment principle--keeps government from taking sides on confessional and other inherently religious matters, moral and ethical questions are still proper objects of legislation. Whose morality will dominate the republic at any point in time and hence be reflected in the positive law of the nation is not predetermined by the Establishment Clause. That determination is left for the making based on who has the more persuasive argument in the marketplace of ideas, as well as the organizational acumen to promote it.
Carl H. Esbeck is the Isabelle Wade and Paul C. Lyda Professor of Law at the University of Missouri at Columbia. This essay is abridged from an article to appear in the Iowa Law Review. Copyright 1998 C. H. Esbeck.