Mention the First Amendment to any lawyer, and the odds are excellent that he or she will assume you are talking about free speech. This habitual tendency to equate the First Amendment with speech goes beyond mere verbal shorthand. It is revealing of the preeminence that lawyers generally accord to speech on their “honor roll of superior rights.” Constitutional law professor Laurence Tribe, for example, reflects the view of many in the profession when he describes freedom of speech in his widely used text as “the Constitution's most majestic guarantee.” As for the American public, opinion studies consistently show that they too value free speech highly. But most American men and women still place the freedom of speech exactly where the framers of the Bill of Rights put it—very close to, but just behind, the free exercise of religion.
What is more interesting than the bare findings of such surveys, however, is the way the latest one was reported by the press. One leading newspaper chose to focus on the information that a majority of Americans (consistent with long-standing constitutional tradition) do not regard the Constitution's speech guarantee as absolutely unlimited. This paper's five-column headline announced: “Study Finds Americans Willing to Curtail Some Free Speech.” One might think that the fact that most Americans interpret the Bill of Rights somewhat differently from the litigation wing of the ACLU is about as newsworthy as a report that the Pope has been seen at Mass. Yet the national press cannot quite get over it. Perhaps someday they will try a new angle on this old story. What, for example, would be the results of a poll among university professors, journalists, professionals of various sorts, entertainers, and other members of the knowledge class inquiring into how they rank constitutional values?
My guess is that the results of such a poll would closely resemble the hierarchy long implicit in the Supreme Court's decisions, and explicit in works by prominent constitutional law specialists. That is, we would probably find many who would agree with Professor Tribe, as well as many others who would prefer Justice Louis Brandeis' famous dictum that “the right most cherished by civilized man [is] the right to be let alone,” otherwise known as the right to privacy. One can only surmise where the freedom of religion would rank on such a list. Would it be treated as of only marginal significance, as Professor Douglas Laycock found it was by the authors of all the leading constitutional law case books used in American law schools? Would it make the list at all? If not, could we expect to see excited headlines proclaiming, “New Study Finds Elites Willing to Dispense With Freedom of Religion”? Or, “Bill of Rights Would Not be Ratified Today by Academics”?
To avoid any misunderstandings, let me make plain that I do not raise the question of a possible discrepancy between elite and popular belief systems in order to suggest that legal elites are to be faulted when they fail to conform to majoritarian sentiment. They perform indispensable services for our society by doing precisely that. Nor do I wish to dwell on the extent to which many intellectuals seem to be lapsing from the independent-mindedness on which they pride themselves into a rather uncritical conformity to the dogmas of knowledge-class culture. The relevance of knowledge-class attitudes to my subject is simply that awareness of some of these attitudes helps one to understand how and why the Supreme Court's religion-clause case law has reached the state where it is described on all sides, and even by the judges themselves, as hopelessly confused, inconsistent, and incoherent.
As an aside, however, I would enter a note of skepticism concerning whether that body of law is really so incomprehensible as it is usually said to be. Admittedly, if what one is looking for is a reasoned elaboration of principles grounded in constitutional text or tradition, or if one expects to see a sustained collegial effort to discern the underlying purposes of the religion provisions and to interpret them in such a way as to promote those values, it is incoherent. Nevertheless, one can comprehend a good deal about court decisions by examining what judges do as well as what they say, and by comparing patterns of fact and outcomes in a line of related cases.
What I wish to suggest here is that one can also learn something about the underlying assumptions of the judges from their silences—what they treat as unimportant or what they choose not to mention at all. Viewed in this way, the Supreme Court's church-state jurisprudence is a museum of examples of a cognitive problem that is pervasive in our legal system. The problem is that, although we have a highly developed linguistic and conceptual apparatus for thinking about and dealing with individuals, market actors, and the stats, we lack adequate concepts to enable us to take into consideration the social dimensions of human personhood, and the social environments that individual men, women, and children require in order to flourish. Sociologists often use the somewhat cumbersome expression “mediating structures” to refer to what I prefer to call communities, i.e., families, neighborhoods, religious groups, and other groups of memory and mutual aid. Psychologists like Urie Bronfenbrenner, who are more inclined to emphasize the role of these primary groups in fostering human development and socialization, speak of “human ecology.” Political theorists, for their part, sometimes use the metaphor “seedbeds of virtue” to underscore the dependency of our design for government on the nurture and education of its citizens and leaders, and hence on the vitality of the sorts of institutions where character is formed and competence acquired.
It is curious that the field of modern American law has rushed headlong into interdisciplinary relationships with economics, but has been slow to avail itself of the resources and insights of the other bodies of social thought I have just mentioned. Legal academics seem to have a preference for what they call the “hard” social sciences, by which they mean forms of inquiry that assume away most of the irrational, messy, and unpredictable aspects of human behavior that are the subjects of examination by the so-called “soft” social sciences. Chaos science, perhaps, will change all this in a generation or two, but at the present time, American courts and legal commentators have difficulty in taking a holistic or ecological view of the relationship between legal and social phenomena. The individual-state-market framework, combined with the relentless present-mindedness that pervades our culture generally, makes it hard for legally trained individuals to take adequate account of any but the immediate implications of much of what they say and do. It is almost as though they had decided to set aside two troublesome elements that threaten to gum up our efforts to devise sensible rules, standards, principles, and policies for a complex, heterogeneous, modern state—the elements, namely, of “society” and “time.”
Ironically, however, the peculiar excellence of the Anglo-American common law tradition over centuries, that which distinguished it from continental “legal science,” was its rejection of simplifying abstractions, its close attention to facts and patterns of facts, and its insistence that in deciding particular cases judges must not only strive to do justice between the parties before them, but must do so with a view toward maintaining principled continuity with the past, and providing guidance for parties similarly situated in the future. It was this unique combination of common sense and modest (as distinguished from “grand”) theory that enabled England and the United States to develop and maintain a legal order possessing the toughness to weather political and social upheavals yet the flexibility to adapt constructively and contribute to social change. When legal scholars distance themselves from those ways of thinking, they repudiate much of what is best in their professional tradition. They begin to resemble Thomas Reed Powell's famous caricature of the legal mind as “a mind that can think of something that is inextricably connected to something else without thinking of what it's connected to.”
There is no great mystery about how American lawyers acquired the mental habits that prevent them from focusing on the social environments where the practices that sustain the democratic experiment are generated, shaped, and transmitted. For most of our history, there simply was no particular reason for statesmen and scholars to pay special attention to families, neighborhoods, religious groups, and other associations, or to the connections among them. These social networks were just there—in abundance, seemingly natural, like gravity, on whose continued existence we rely to keep us grounded, steady, and attached to our surroundings.
Certainly no one can blame the Founders for the fact that they took for granted the dense texture of eighteenth-century American society, with its family farms and businesses, its tight-knit communities, and its churches firmly woven into the social fabric. Nor would it be fair to say that the Founders underestimated the importance of the institutions whose durability they assumed. On the contrary, there is much evidence that they counted on families, custom, religion, and convention to help preserve and promote the habits and practices they believed to be required for the success of their experiment in ordered liberty. But it seems not to have occurred to our early leaders that there might come a time when the society's ability to produce virtuous citizens and statesmen would falter.
Things were quite different on the other side of the Atlantic where the French revolutionaries had deliberately set out to try to eliminate every intermediate body standing between citizen and state. In this bicentennial of their founding period, when we are all trying to think of nice things to say about the French Revolution (at least until 1993 rolls around), it is appropriate to note that a happy by-product of all that revolutionary fury directed against the family, the guilds, the Church, and the commune system of local government was to bring into being a great school of social and political thought whose leading figures were concerned with what might happen when and if society actually did lose its intermediate structures. Burke, Tocqueville, and later Durkheim understood that this could not happen overnight (as the revolutionaries had hoped), but that it could be the long-term consequence of several fateful choices that in themselves seemed benign. What would the world be like, they asked, if nothing stood between the free, self-determining individual and the mighty, sovereign state?
The body of social theory they produced affords a useful perspective from which to consider the United States Supreme Court's religion decisions. For with hindsight we can see that in the 1940s, when the Court decided to make the religion language of the First Amendment binding (via the Fourteenth Amendment) on the states, industrialization, urbanization, and our special American history of geographic mobility had already begun to take a certain toll on families and other social structures. Our social capital, so to speak, was diminishing a bit. But we had plenty of it, and anyway, not everyone feels strongly about preserving capital.
We should not fault Supreme Court justices of the 1940s for failing to consider that this country might have been consuming its social capital somewhat faster than it was being replenished. After all, the Court began to apply the religion clauses to the states just at a time when the World War II effort had given the country an extraordinary sense of national unity. The members of the Court had every reason to embark on the incorporation project with a sense of complacency about the crisscrossing networks of associations and relationships that constitute the warp and woof of a civil society.
When several of those justices went on to become pioneers in the judicial rights revolution that began in the 1950s, they continued to be somewhat cavalier about cultural foundations. In their zeal to protect certain preferred individual liberties, they seem in retrospect (like the French revolutionaries) to have given little thought to the structures that ultimately sustain a regime of rights. Where, one wonders, did they expect Americans to acquire that genuine respect for the dignity and worth of others that we now demand from our citizens to a higher degree than ever before? How were citizens of our increasingly diverse country supposed to internalize a sense of concern for fellow human beings in need that would be strong enough to support the expanded welfare activities of government? To pin so many of their hopes in this regard on the public schools, as some of the judges seem to have done, was seriously to underestimate the extent to which the public schools themselves depended, and still depend, on the support of, and interaction with, families and their surrounding communities.
What started out as mere judicial inattention to the role of religious groups in the American social ecosystem seems over time to have passed into a more studied indifference. Purely as a matter of judicial craftsmanship, it is striking in retrospect to observe how little intellectual curiosity was shown by most members of the Court in the challenge presented by the fact that the religion language of the First Amendment was made binding against the states at just the time when state and federal relations were undergoing momentous changes and the federal government was rapidly expanding its reach into towns and cities and local school districts. Transposing to this new context language that had been meant to apply only to the federal government posed an intriguing set of legal-political questions—real brain-teasers that should have called forth every ounce of energy, wit, technical skill, and imagination available to the Court. Yet in reading the decisions it is hard to escape the impression that—regardless of outcomes—serious issues were overlooked, important claims and arguments were rather lightly dismissed, and practical implications were regularly ignored.
The Court skipped right over formidable interpretive problems that required the kind of attention to language, history, and purposes that its members had lavished on many other parts of the Constitution: Are the establishment and free exercise provisions two separate “clauses” each with its own set of values, and somewhat in tension with one another? Or is there, as the historical record suggests, but one religion clause whose establishment and free exercise provisions serve one central value—the freedom of religion? Is free exercise an individual right, or does it also have associational and institutional aspects? Instead of grappling with these and other vitally important questions. Court majorities were content for a considerable period of time, in establishment cases, to use the metaphor of the “wall of separation” as a substitute for reasoned analysis. As for free exercise, it seems to have been left on the sidelines of the rights revolution. Indeed, free exercise in the broad sense took something of a battering in this period from Court majorities who gave a very expansive interpretation to the notion of “establishment' without pausing to consider the costs they might be inflicting on the associational aspects of free exercise.
From time to time, various justices have given us glimpses of the beliefs and assumptions about religion that undergirded their inclination to construe the establishment language in the First Amendment broadly: beliefs that religion is “inviolably private”; that it is an “individual experience”; and that a religion “worthy of the name” is the product of “choice.” What is troubling about such presuppositions is that they leave out of consideration the free exercise interests of members of religions to which the idea of a worshiping community is central. In addition, as Michae1 Sandel has pointed out, they fail “to respect persons [who consider themselves] bound by duties they have not chosen,” the men and women who experience religious commitment more as a kind of “yoke” or “encumbrance” than as the product of a shopping expedition in the marketplace of ideas.
In the 1970s, Court majorities eventually shifted away from trying to maintain a “high and impregnable wall of separation” in establishment cases. Nevertheless, the Court's generally expansive understanding of what it means to establish religion continued to hinder legislative and local experiments with creative use of mediating structures to deliver social services. Nowhere have the deleterious effects of an excessively narrow view of free exercise and an inflated concept of establishment been more apparent than in the cases involving schools. In a judicial pincer movement, one line of decisions requires the public schools to be rigorously secular, while another has struck down most forms of public assistance to parents who desire to protect their children from an educational system that is often actively promoting values that are profoundly at odds with the family's religious convictions. The net result has been that a crucial aspect of religious freedom can be exercised only by families wealthy enough to afford private education after paying taxes to support public schools. Nor is private education an entirely safe harbor from intrusive and homogenizing governmental regulation.
All these trends culminated in, and were symbolized by, Aguilar v. Felton, the 1985 case in which the Court struck down a Great Society program designed to provide federal aid to educationally deprived children from low-income families. Under the specific program involved in Aguilar, public school teachers in New York City furnished remedial services and instruction to poor children with special needs in the city's private schools as well as to public school students. Of the private school children who were helped by this program, 84 percent were in Catholic schools, and 8 percent were in Hebrew day schools. After nineteen years of successful operation, this program was attacked by six taxpayers as a violation of the establishment provision, and was struck down by a 5-4 majority of the Supreme Court on the grounds that it impermissibly entangled church and state. The fatal entanglement arose from a judge-made “Catch 22”: The program had to be monitored by the school district in order to assure that the public school teachers did not become involved in advancing religion, but the process of monitoring was itself an impermissible form of state involvement with religion.
Justice O'Connor's dissent in Aguilar could serve as a general indictment of the approach to establishment issues that had prevailed on the Court since the 1940s. She chided Justice Brennan for his utter lack of interest in the facts of the case, for the abstract and perfunctory character of his analysis, for his failure to inquire into the practical operation of the program he struck down, and for his unconcern with the effects of the Court's decision on the lives and prospects of 20,000 poor special-needs children in New York City—not to mention children in similar programs in other parts of the country. She pointed out that the record showed not a single incident of religious “inculcation” by the public school teachers during the nineteen years that this large-scale program had been in operation. She noted, too, that this unblemished history was hardly surprising in view of another undisputed fact: three-quarters of the teachers in the program did not even have the same religious affiliation as the schools in which they taught. Nevertheless, as often in the past, a majority on the Court in Aguilar condemned a benign, carefully worked out legislative settlement by mechanically applying an abstract “test.”
It seems fair to observe that until the composition of the Court began to change in the mid-1980s, the decisions interpreting the religion language of the First Amendment showed few signs of giving the difficult issues in the area the care and concentrated attention that they needed and deserved. Then, with the departure of Justice Powell from the Court, and his replacement by Justice Kennedy, a period of change seemed to be opening. But the Court soon veered alarmingly in the direction of yet another simplistic approach—this time reflexive deference to the elected branches of government.
The most serious problem with the deferential approach to the legislature and executive now emergent is that, if applied with the same rigidity as was the old strict separationism, it is highly threatening to free exercise concerns, especially where members of small, unpopular, or unconventional religions are involved. The Court's decisions in the Air Force yarmulke case, the prison worship case, and most recently the peyote discharge case are troubling in this respect. The problem is not so much the bare results in those cases—reasonable people differ over whether some or all of them are justified by strong governmental interests. It is, rather, the majority's reasoning (or, more precisely, its lack of reasoning) in its inclination mechanically to subordinate free exercise to reasons of state without examining the governmental interest asserted and without reckoning the burden to free exercise.
One might imagine that a flexible and principled, as opposed to a rigid and mechanical, deference to the elected branches would have certain advantages over its predecessors, at least in the establishment cases. Unlike rigorous separationism, it would not carry overtones of those attitudes Justice Goldberg once described as “a brooding and pervasive devotion to the secular and a passive, or even active, hostility to religion.” Such an approach would be more sensitive to the significant regional variations that exist in this country, and more respectful of local democratic decision-making. It would be apt to facilitate utilization of mediating structures which, as Peter Berger and Richard John Neuhaus have argued, can often deliver social services more efficiently, more economically, and more humanely than the state. And it would be likely to promote an important form of free exercise if it were to facilitate support of parental choice in education. It is unfortunate, I believe, that so much attention and energy have been expended for and against prayer in public schools, when the real issue is the current state of the public schools themselves, and the growing sense of many parents that they are losing the struggle for the hearts and minds of their children.
The peyote case, Employment Division v. Smith, however, looks very much like a decisive step by a Court majority toward an excessively rigid posture of deference in free exercise cases. There, Justice Scalia, upholding the denial of unemployment benefits to Native Americans dismissed from their jobs for religiously inspired peyote use, wrote that “generally applicable religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Nevertheless, there is some basis for believing that Smith does not represent the Court's definitive adoption of a new approach. In the first place. Justice Scalia's opinion in Smith does not unambiguously purport to represent a comprehensive reordering of a body of law that took over forty years to become confused and unworkable. Furthermore, if one takes into consideration the views on religious freedom that have been expressed on various occasions by most of the individual justices who joined in the result in Smith, it is hard to believe that this one case represents their last word on a subject to which they have devoted so much thought in dissents and separate concurrences over the years. Keeping in mind that it took decades for the law in this area to achieve its present tangled state, it seems reasonable to expect a few fits and even false starts as the Court strives to work out a better way of dealing with the sensitive and important issues involved in these cases.
Prominent among the elements that one might expect to play a role in the process of developing a more principled and workable approach is Chief Justice Rehnquist's judicial statesmanship, his demonstrated interest in religion-clause history, his often-expressed solicitude for the role of religion as a mediating structure, and his view of federalism. Another is Justice White's longstanding call for a thorough reconsideration of the case law in this area—a process that has not yet taken place. Another is Justice Scalia's fidelity to constitutional text, a text that is no more neutral on the value of religion than it is on the value of free speech. Yet another factor is Justice Kennedy's constant alertness to the way in which purported “neutrality” can mask “hostility” to religion, a concern that in many cases cannot be alleviated without some scrutiny of the purpose and effects of laws that appear neutral on their face. A key role will undoubtedly be played by Justice O'Connor. Her willingness to listen, her careful attention to all points of view, her inclination to proceed cautiously case-by-case, her persistence in demanding justification, her attention to facts and practical consequences, all combine to bring the rich resources of the common law tradition to bear on problems to which the Court in the past has given short shrift. Justice Souter, for his part, shows every sign of being a judge in the common law mode exemplified by Justice O'Connor.
It is possible, some would say probable, that a Court majority will once again—without much deliberation—brush the religion clause aside while it pursues an unrelated constitutional agenda. Smith may, as many fear, be the decisive step toward a reflexive majoritarianism as simplistic in its way as was the old separationist anti-majoritarianism. But on the other hand it may be that in time Smith will come to be seen as explicable mainly in relation to a strong national policy for dealing with a severe social problem. That is, just as Bob Jones (where a university's religiously based ban on inter-racial dating cost it its tax exemption) is more of an anti-discrimination case than a religion-clause case, so Smith may turn out to be primarily a drug case—a detour, rather than a landmark, in First Amendment case law. No doubt it is just in such “hard” cases where the Supreme Court ought to stand tall for religious liberty. But unfortunately, it is just in such cases that the Supreme Court, being human, is apt to falter. But not every judicial slip must initiate a cycle of decline.
My reading of the post-1987 religion cases is that they show a closely divided Court earnestly beginning to struggle with the formidable interpretive difficulties of the Constitution's religion language. The path they are taking may be erratic, but this group of justices society, and whether they will restore religion to its is, at least, taking the religion clause seriously. Whether rightful place as the first among freedoms, remains they will unite on a workable approach for a pluralistic to be seen.
Mary Ann Glendon is Professor of Law at Harvard University and author, most recently, of Rights Talk: The Impoverishment of Political Discourse (Free Press).