| It is widely (and justifiably) accepted that evangelical Christian support was an important factor in Donald Trump’s 2024 presidential election victory. One post-election survey of about 6,000 adults conducted by the Public Religion Research Institution concluded that 60 % of White evangelical Protestants and 45% of Hispanic Protestants agreed with the statement: “God ordained Donald Trump to be the winner of the 2024 presidential election.” Those are remarkable numbers. | | Nor is there much reasonable doubt that President Trump’s second-term administration has tried, quite literally and energetically, to speak to this important bloc of electoral support. The recent and aggressively sectarian messaging by the Secretary of Agriculture to department employees, to celebrate the religious meaning of Easter, is illustrative. An email bearing the subject line “He has risen” was sent to about 100,000 department employees, which prompted pushback from federal employee unions who objected to the “sermonizing” nature of the official communication. President Trump’s ”Rededicate 250” daylong prayer event on Sunday, May 17, on DC’s National Mall, billed as a ”National Jubilee of Prayer, Praise, and Thanksgiving,” is an even more prominent recent example. | | This seeming uptick in the frequency of overt religious advocacy by government over the last year is not limited to the federal government; the enactment (and recent validation by the United States Court of Appeals for the Fifth Circuit) of Texas’s statewide law requiring all public elementary and secondary school classrooms to display a poster or framed copy of the Ten Commandments is but one high-profile action in this regard at the state level. | | And yet the arguments—some going back to the nation’s founding and others of more recent vintage—about the constitutional perils of and harms created by governmental religious speech have not gone away; in the space below we try to collect, explicate, and update many of the most important principles and values that are implicated and undermined when religious speech is promulgated and promoted by the state. As a doctrinal matter, these principles and values have most typically been relevant to our understanding of the Establishment Clause of the First Amendment. | | We start with a principle that should be self-evident. Our society does not and should not determine religious truth through legislative enactments or popular initiatives, or by executive fiat. The historical pedigree for this conviction runs deep and is powerfully illustrated by James Madison’s famous Memorial and Remonstrance Against Religious Assessments in 1785. In this tract, he reminded that “[t]he Religion then of every man must be left to the conviction and conscience of every man.” Because this inalienable right is reserved to the individual, “Religion [as such] is wholly exempt from [the] cognizance” of Civil Society and the Legislature.” To argue otherwise and maintain “that the Civil Magistrate is a competent Judge of Religious Truth. . . is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages and throughout the world. . .” | | The second principle is a corollary of the first. The core constitutional value underlying both religion clauses in the First Amendment (the Establishment Clause and the Free Exercise Clause) is the idea that religion should be voluntary and left to individual rather than government determination. On matters of faith, each of us speaks for herself in her own, not the government’s, voice. Just as the government of limited powers was not granted the authority to determine or proclaim religious truth, We the People do not vest government or state officials with the authority to speak to G-d in our name. And the particular language we choose in order to communicate with G-d in prayer is also personal and inalienable. | | As one of us as (Alan) argued elsewhere, this principle suggests that, with limited exceptions (such as military chaplains conducting services for adherents of their faith who voluntarily attend), in those unusual circumstances when it may be legitimate for a government official or entity to expresses a prayer in an official context, the prayer should be styled as an “I” prayer, not a “We” prayer. The officials should be clear that they are speaking for themselves and not purporting to speak for the community. There is a basic distinction between a prayer that begins by saying to G-d, “I” ask your blessing and a prayer that begins “We” ask your blessing. The former is a personal message of the speaker. The latter purports to be a message from the audience or the polity. | | The third principle, which in many ways follows from the first two, precludes government from promoting religious conformity. This principle, too, has deep historical roots and, for that reason, is recognized to be one reason the founders forbade religious establishments, as such staunch originalists as Michael McConnell and Nathan Chapman (who question the legitimacy of recent laws mandating the posting of the Ten Commandments in public schools) have demonstrated. Here, we would add that government religious speech can be inherently, even if not always intentionally, coercive of religious conformity. The Supreme Court stated this emphatically in Engel v. Vitale, the 1962 case striking down a state’s practice of directing public school students to recite an official government-drafted prayer, notwithstanding a theoretical opt- out provision for students who did not want to participate. In the Court’s words, “[w]hen the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” | | The coercion is more direct and arguably even more problematic when government bodies or officials who enjoy discretionary authority to provide important benefits to, or impose significant sanctions on, individuals invite those individuals to join the government in religious expressive activities, such as prayer. To paraphrase the Godfather, often these invitations are, in practice, “offers [they] can’t refuse.” For instance, if a judge “invites” litigants and attorneys appearing before them to join the judge in prayer in the courtroom before proceedings begin, how much real choice is there? The same is true if teachers offer such invitations to the students in their classrooms. Or government supervisors extend similar invitations in the workplace to employees subject to their authority. The Supreme Court egregiously failed to uphold this principle a dozen years ago by permitting, at town Board meetings, invitations to pray directed at audience members (many of whom had business before the city government officials)in Town of Greece v. Galloway, notwithstanding the blatantly coercive context in which the prayers were expressed. | | Fourth, government religious speech will almost always express favoritism for certain faiths and ignore or disfavor others. This violation of religious equality principles is one of the reasons an originalist methodology for interpreting the Establishment Clause only as understood in 1791 (without adapting and updating it to account for the equality norms of the Reconstruction Amendments), can be problematic. Our point here is not only that, as a demographic matter, conditions in American society have changed dramatically over the last 230 years (although the expansive pluralism of religious faiths and non-religious beliefs today bears little resemblance to the Protestant hegemony of our constitutional past). The legal text of the Constitution itself has been amended in important respects since 1791, and constitutional doctrine regarding equality rights that has evolved through judicial decisions cannot and should not easily be walled off from the meaning of the religion clauses of the First Amendment. | | Most notably in this regard, the constitutional commitment to equality developed after the adoption of the Fourteenth Amendment ramifies and rightly influences constitutional doctrine in numerous contexts beyond the Equal Protection Clause itself. Historically, even though the colonists valued religious liberty, they did not consistently embrace religious equality, just as they were not committed to other kinds of equality, such as racial or gender equality. Religious liberty was understood in Protestant terms. Hierarchical faiths, in particular the Catholic Church, were considered to be threats to religious liberty, not institutions to be protected under the auspices of religious liberty. Thus, the colonies condemned the Quebec Act (which provided religious liberty to Catholics in Canada) as one of the Intolerable Acts. Important leaders, such as John Jay, one of the authors of The Federalist essays and the nation’s first Chief Justice, were stridently anti-Catholic. And colonial and early state statutes governing the legal status of religious entities disrespected the structure of the Catholic Church by assigning control over religious decisions, such as the hiring and firing of clergy, to the laity. Native American faiths and African religions were also not valued equally alongside Protestantism, just as Native Americans and Africans were treated unequally in other vital respects. | | The ratification of the Fourteenth Amendment, and federal courts’ ultimate (if belated) enforcement of its terms, changed the constitutional equality framework. Now, racial minorities, women, groups defined by national ancestry, non-marital children, and gays and lesbians have claims to equal treatment. In that constitutional environment, should not religious minorities be similarly entitled to equality? After all, while religion (like sex and race) may in some respects be mutable, religion is part of one’s innate identity and often implicates notions of birthright equality. When the Supreme Court stated in Larson v. Valente (1982) that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another,” it would be hard to argue that this conclusion was not influenced at least to some extent by equal protection values. | | Equal protection analysis also reminds us that true equality involves a person’s status and not just her practices. Thus, as the Court famously recognized in Brown v. Board of Education, the Equal Protection Clause is violated even when racial groups are treated equally in material terms if state action communicates a message of inferiority impacting the “hearts and minds” of racial minorities. Similarly, gender stereotypes about the role of women in society are constitutionally problematic. | | Equality principles do not preclude government from expressing all religious messages. But they do constrain the disparate favoring of speech espousing certain beliefs while ignoring the beliefs of other faiths or non-religious belief systems. When a fallen veteran is interred in national cemeteries, the Department of Veterans Affairs permits her to choose an emblem of belief to be placed on the government-furnished headstone. To date, almost one hundred distinct emblems are accepted. This facilitation of religious and non-religious beliefs by government sends a message recognizing the pluralism of our society and the idea that adherents of different faiths and non-religious individuals are of equal worth and merit equal respect. An off-the-rack, take-it-or-leave-it symbol offered by government, such as a cross in a cemetery memorial, would send a very different message. | | The fifth, and arguably the most complicated, principle justifying constitutional constraints on government religious speech involves free speech concerns. It is nearly universally accepted that free speech doctrine prohibits the government from distorting the marketplace of ideas through viewpoint discrimination. The government cannot adopt regulations that favor the expression of certain viewpoints of speech by private speakers while providing less favorable treatment (or negative treatment) to other viewpoints. This requirement creates a serious problem for the accommodation of religious exercise, particularly when religious individuals or institutions are exempt by free exercise prescription (either constitutional or statutory) from regulatory burdens their secular counterparts must obey. | | The tension between viewpoint neutrality and religious accommodation is hard to avoid because so much of religious practice and exercise is expressive in nature. Prayer, sermons, proselytizing, the publication of scripture, religious teaching in religious schools, religious assemblies in houses of worship are just some obvious examples. As a matter of fact, religious practices are often both speech and religious exercise. It is also clear from several Supreme Court decisions that religion can be considered a viewpoint of speech. Thus, we have this constitutional conundrum. Treating religious exercise differently than secular activities seems acceptable under, indeed even (according to some) required by, the Free Exercise Clause. But treating religious expressive activities differently and more favorably than their secular counterparts seems constitutionally repudiated by the prohibition against viewpoint discrimination mandated by free speech doctrine. How do we protect religious exercise without simultaneously distorting the marketplace of ideas by privileging religious expression? | | One solution would be to try to limit free exercise protection and accommodations to only those religious practices and institutions that are not expressive in nature. Attempting to do that would be unmanageable at best, and if done rigorously, would substantially limit free exercise exemptions and accommodations. | | An alternative approach is to recognize that the limits the Establishment Clause places on government religious speech can be used to temper the distortion of the marketplace of ideas created by the privileging of private religious expressive activities under free exercise auspices. Establishment Clause constraints on government religious speech, but not secular speech, offset that privileging of religious messages and ideas. The two clauses operating together create a form of rough neutrality—favoring religious messages through free exercise mandates and statutes while limiting religious messages expressed or promoted by government. | | Thus, for example, under a rigorously enforced Establishment Clause, the government could not place a religious symbol, such as a cross, on City Hall or post religious messages on the walls of public schools. The placement or posting of secular symbols or messages (espousing patriotism, tolerance, or civic responsibility, for example) would not be similarly constrained since (nonreligious) government speech is routinely permitted even though government expressed a particular viewpoint. But the private expression of religious beliefs would be favored over opportunities to communicate secular ideas. Thus, under a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), religious land uses such as houses of worship or religious schools are protected against burdensome land use regulations that property owners using their land for secular purposes must obey. Houses of worship, which may be engaged primarily in intrinsically expressive activities, can use this privileged status to prominently display the religious symbols and messages the state itself is prohibited from promoting. | | The resulting (and admittedly rough) quid pro quo reduces the distortion of the marketplace of ideas. And by taking both Free Exercise and Establishment Clause concerns seriously, constitutional doctrine would affirm the most basic principle governing the relationship between church and state in our system. Religion belongs to the individual and their faith communities, not to the State. On matters relating to faith, we can speak for ourselves. The state should stand back and let the voices of the people be heard without government adding to or detracting from that discourse. | | In the last few decades of the twentieth century, Supreme Court doctrine seemed to be striving for the kind of balance we describe here. More recent doctrinal trends suggest the Court may be abandoning that enterprise, but evaluation of that emerging development is a separate topic; we have written this column about how we think things should be, not necessarily how they currently are. |
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