The Roberts Court and the Separation of Church and State

F. Strier: Rel-igion and the Roberts Court

Separation of Church and State was one of the fundamental principles undergirding the new nation envisioned by the framers of the U.S. Constitution. Neither “God” nor any synonym for it appears anywhere in the Constitution. Article VI forbids any religious test “as a qualification to any office or public trust under the United States.” And even before granting the freedoms of speech, the press, assembly, and petition, the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Taken together, the “Establishment Clause” and the “Free Exercise Clause” of the First Amendment impose a delicate, dual obligation upon government, under which Congress can neither empower religion nor restrict it. But now this cornerstone of American government is under siege, its foundation threatened by an agenda-driven Supreme Court.

The Establishment Clause

The phrase “separation of church and state” derives from a letter by President Jefferson in 1802 where he wrote: “Erecting the wall of separation between church and state…is absolutely essential in a free society.” The wellspring of American anti-establishment thinking, however, was Jefferson’s successor, James Madison—the principal drafter of the Bill of Rights. He believed the attempt to “employ religion as an engine of good citizenship” to be “an unhallowed perversion of the means of salvation.”

With Madison’s writings as its polestar, the Supreme Court has long interpreted the Establishment Clause as barring laws that favor one religion over another, or even religion in general over secularism. Government cannot declare any single religion to be the “true” religion; it cannot cede civil power to religious bodies; it cannot fund religious education directly or discriminate between religions in the distribution of funds. The Court has overturned numerous laws that violate the Establishment Clause, like those mandating bible reading, prayer, or the teaching of creationism in public schools. So important is the Clause that in the landmark 1986 case Flast v. Cohen, the Warren Court facilitated its enforcement with a remarkable and unique sanction: it ruled that every taxpayer has legal standing to challenge, as a violation of the Establishment Clause, the appropriation of congressional funds to finance religious instruction in schools.

At other times, however, the Court has shown timidity in applying the Establishment Clause. In the 2004 Elk Grove Unified School District v. Newdow case, for example, the federal Ninth Circuit Court of Appeals held that the words “under God” in the Pledge of Allegiance commonly recited in public schools violated the Clause. On appeal, the Supreme Court reversed the Ninth Circuit on purely procedural grounds. Michael Newdow, a California attorney and emergency medicine physician, had brought the suit on his daughter’s behalf. The Supreme Court held that because Newdow’s wife had primary custody of his daughter, he therefore lacked standing to sue by himself. The Court never considered the constitutional issue at all.

The “No Agenda” Roberts Court

No such timidity inhibits the Roberts Court. Its rulings suggest a “pro-church” bias, and have enfeebled and muddied the meaning of the Establishment Clause. In the 2007 Hein v. Freedom from Religion Foundation case, the Court denied the taxpayer’s right to challenge government expenditures funding the Bush administration’s “faith-based initiatives.” In the 2011 Arizona Christian School Tuition Organization v. Winn case, the Court similarly denied Arizona taxpayers the right to challenge, under the Establishment Clause, tax credits for tuition payments to a parochial school. Both cases were 5–4 split decisions. In both cases, the Flast precedent granting taxpayer standing to sue was marginalized and implicitly overturned.

In its Hein decision, the Court didn’t expressly overturn Flast, but instead held that the precedent didn’t apply because the challenged expenditure was by the executive branch rather than Congress. Only Congress, Alito wrote in his plurality decision, is constrained by the Establishment Clause. (Never mind that the executive branch is funded by Congress!) Justices Scalia and Thomas concurred with Alito’s opinion, but criticized it for creating “utterly meaningless distinctions” between executive and legislative expenditures. Instead, Scalia and Thomas favored overturning the Flast precedent outright.

In the Arizona Christian case, the majority again made a “meaningless distinction.” The Arizona private school tuition tax credit in question had cost the state, by its own estimate, about $350 million in diverted tax revenues. Again, the Court’s narrow conservative majority held that the complaining taxpayers lacked standing, but again, Flast was not explicitly overturned—because the Court found that a tax credit is not the same as a government appropriation. In her dissent, Justice Elena Kagan stated the obvious: “Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.” To say that a tax credit is not the same as a government appropriation is akin to saying that six is not the same as a half-dozen. In appearance, they differ; in effect, they are identical.

Rulings on the First Amendment are often useful in revealing the philosophical orientation of a Supreme Court. The Roberts Court has diminished the free speech rights of government employees and students, in Garcetti v. Ceballos (2005) and Morse v. Frederick (2007), respectively, while extending speech rights to corporations in Citizens United v. FEC (2010). Roberts famously promised during his confirmation hearings, “I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind…I will remember that it’s my job to call balls and strikes and not to pitch or bat.” The statement stands in stark contrast with his Court’s broad and rapid revisionism.

Although they almost always vote in lock step, the members of the Roberts Court majority bloc differ in their judicial philosophies. Most notably, Scalia and Thomas fashion themselves as “originalists.” They purport to divine the intent of the Constitution’s framers on the issue at hand, and then implement that intent in their decisions. At least, as they see it. And they see it through a prism of thinly veiled personal and political values. If, however, original intent does not support their desired outcome, they ignore it, making it difficult to assign much credibility to their professions of profound allegiance to originalism. One painful illustration suffices. Writing for the majority, Scalia infamously used the same phony originalism to justify the Court’s decision in the District of Columbia v. Heller case (2008), which held that the Second Amendment protects an individual’s right to possess a firearm. Scalia’s version of originalist analysis marginalized the amendment’s Militia Clause, which had always been considered at once a hefty limitation on the right and the explanation for the limitation.

Particularly troubling for those concerned about the corruption of the Establishment Clause are the views of Justice Thomas. Some background: it is widely accepted that the Court made the Clause applicable to the individual states—via a process called “incorporation”—in the 1947 case Everson v. Board of Education. (This is not a fringe theory; since the late nineteenth century, virtually all of the Bill of Rights has been incorporated via a series of Supreme Court decisions.) But don’t count on Thomas as a believer. When it comes to incorporation of the Establishment Clause, he is a Doubting Thomas. He recently maintained that the framers intended to allow the states to decide individually whether and how to promote religion. Considering the breadth of diversity among the states—in values, customs, practices, and especially religion—uniformity would be the first casualty. Under Thomas’s ideal, the political strength of each religion, and of religion in the aggregate, including state sponsorship of religious messages and symbols, would likely wax and wane in proportion to the relative influence of each religion and the collective strength of the religious community in each state. If Thomas’s vision was implemented, the nation’s political map would no longer be comprised merely of red or blue states; there could also be states identified as Catholic, Lutheran, Mormon, and so on—no doubt accompanied by the sounds of Jefferson and Madison spinning in their graves.

The Hosanna-Tabor Case

The Roberts Court’s crowning achievement in exalting the status of organized religion is the recently decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC case. The Court had to decide whether the school could be sued for violating the Americans with Disabilities Act for firing a teacher with narcolepsy, or whether the school, as a religious organization, is exempt under the religion clauses of the First Amendment. The key issue was whether the teacher fell under the “ministerial exception” to the employment discrimination laws, whereby those employees deemed clergy cannot sue their employers for violation of anti-discrimination laws. The trial court dismissed the claim, based on the exception. The Sixth Circuit reversed.

The overwhelming majority of courts that have considered the issue have held that parochial school teachers who teach primarily secular subjects (the teacher in the Hosanna-Tabor case devoted only forty-five minutes per day to religious instruction) do not classify as ministerial employees for purposes of the exception. The Sixth Circuit reasoned that “[t]he fact that [the teacher] participated in and led some religious activities throughout the day does not make her primary function religious.” But the Roberts Court, elevating the reach and power of the Church, ruled otherwise and reversed.

According to the Roberts majority opinion, both religion clauses of the First Amendment dictated the outcome:

By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

Legal scholars and commentators will vet and analyze the Court’s rationale ad infinitum, ad nauseum. More useful is exploring what the Court did, not merely what it said: judicial rationales tend to be supple and conceptual, whereas the consequences of Supreme Court judicial decisions can be starkly oppressive. Given the scope of the ruling, churches and other houses of worship now have discretion to determine who among their employees qualify for the ministerial exception. Further, churches now could enjoy immunity from lawsuits by such employees claiming violation of their civil rights. Barry Lynn, the executive director of Americans United for Separation of Church and State, predicted dire consequences of the ruling, according to the New York Times, including possible immunity from suits by pastors who are sexually harassed. “Blatant discrimination is a social evil we have worked hard to eradicate in the United States,” he stated. “I’m afraid the court’s ruling today will make it harder to combat.”

A critical component of the decision is its breadth. Roberts’s opinion states:

The purpose of the [ministerial] exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead assumes that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,”—is the church’s alone.

The scope of litigation that this decision makes possible boggles the mind, because the church’s employment decisions about those it designates as “ministers” do not have to be based on religious grounds. It implies, for example, as emeritus law professor Howard Friedman has speculated, that the government could not deport an undocumented immigrant chosen as a church “minister.” It even suggests that a minister could not be charged with a committed crime because to do so would deprive a church of its chosen religious leader.

Given the impact of the ruling, one would assume that the legally unassailable decisions of the church have to be based on religious doctrine. No so. Under the ruling, church employment decisions need have no doctrinal component. In effect, the Court is (at least) suggesting that the church’s decisions on hiring and firing those it labels “ministers” are decisions that stand above the law even if the decisions are devoid of any religious dogma or association.

The Hosanna-Tabor decision also presages a clangorous battle over the Affordable Care Act. The Act’s implementation requires distribution of contraceptives and provision of abortion services at Catholic institutions. Hosanna-Tabor arms the Church with a formidable legal arsenal for its expected vigorous opposition.

In the Hein and Arizona Christian cases, the Court diminished the reach of the Establishment Clause. Yet in the Hosanna-Tabor case, the Court’s ruling against the teacher was based on a more muscular interpretation of the Establishment Clause. How to explain the apparent inconsistency? The Roberts Court, as few before it, is distinctly results-oriented. That is, it appears to seek outcomes that conform to particular agenda-driven economic, social or political values. Writing in the Northwestern University Law Review about the different strategies that members of the majority employ to interpret the Establishment Clause, Andrew Koppelman observed: “Their efforts have, however, had two characteristics in common: they rest on dreadful historical scholarship, and they conveniently coincide with the agenda of the Republican Party.” Conservatives would contend that the current Court is no more results-oriented than the Warren Court. That contention, however, would conflate and confuse two related but distinct judicial concepts: activism and results-orientation.

Judicial Activism on the Supreme Court

Judicial activism originated with the 1803 decision of Marbury v. Madison, when the Marshall Court arrogated to itself (and all future federal courts) the power of judicial review: the authority to determine the constitutionality of statutes and policies enacted by the other branches of government. Nevertheless, the Court found no federal law unconstitutional until the Dred Scott decision in 1857, which held that black slaves and their descendants had no protections under the Constitution. Lincoln condemned the infamous decision, saying that if government policy became “irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.” During the 1930s, the Hughes Court struck down several of FDR’s New Deal measures. But the Court’s intransigence withered after FDR’s court-packing proposal. Thereafter, judicial activism did not flourish until the appearance of courts headed by Chief Justices Warren (1953-69), Burger (1969-86), Rehnquist (1986-2005) and now, Roberts (2005-present).

The term “judicial activism” has long been a rallying cry of Supreme Court critics on both sides of the political divide; what is “activism” to critics of the Court is “justice” to its supporters. Judicial activism, however, can be defined and measured. The traditional criteria are how often each Court a) invalidates legislation or b) overturns precedent.

Although critics often brand the liberal Warren Court as the most activist, the data belie that claim. The Rehnquist Court not only invalidated more federal statutes than its predecessors did, it did so at a much faster rate. With regard to overturning precedent, the Rehnquist Court did so slightly more often (thirty-nine times) than did the Warren Court (thirty-two times). Both pale in comparison with the Burger Court, however, which did so seventy-six times.

In his book The Most Activist Supreme Court in History, Thomas Keck maintains that despite the extensive criticism of the Warren Court’s liberal activism, it was exceeded by the Rehnquist Court’s activist policymaking. Yet because of its makeup, the Rehnquist Court did so while maintaining many of the liberal policies of the Warren and Burger Courts. The Rehnquist Court, writes Keck, had a unique combination of liberals, conservatives, and swing votes, coupled with a “strong conception of judicial supremacy.” The key point is that judicial activism, in and of itself, is not a measure of, or proxy for, bias. Rather, bias is revealed by analyses of results.

Results-Orientation on the Supreme Court

The judicial activism data do not reveal the true extent of the Roberts Court’s conservatism. It has not found laws unconstitutional or reversed precedent more frequently than its immediate predecessors. But using results-orientation analysis—a measure of the liberal or conservative nature of the social, political, or economic values redeemed or realized by the Court’s decisions—another picture emerges. According to an analysis last year in the New York Times, the Roberts Court is the most conservative in living memory. The Times found that the Warren Court’s decisions resulted in conservative outcomes 34 percent of the time, the Burger and Rehnquist Courts in 55 percent of their decisions, and the Roberts Court 65 percent of the time. In its first term, the Roberts Court yielded conservative outcomes in 71 percent of its decided cases, the highest rate since 1953.

Has the Roberts Court actually been more conservative than the Rehnquist Court, the Court that awarded the presidency in Bush v. Gore? If we confine the analysis to cases involving judicial activism (striking down laws or reversing precedent), there is no comparison. As noted, the Rehnquist Court has been the most activist. But when it struck down a law, it actually reached a liberal result in slightly over 70 percent of cases, whereas the Roberts Court reached a conservative result in 60 percent of such cases. When reversing a precedent, the Rehnquist Court had conservative outcomes in 60 percent of cases, in contrast with the Roberts Court, which, as of the end of 2010, yielded conservative outcomes in a whopping 88 percent of cases.

The Roberts Court has consistently shown itself eager to hear and decide, along distinctly ideological lines, numerous controversial cases—from campaign finance to gun control. And it has apparently done so with a relentless clarity of purpose. The Court’s suspected pro-business leanings, for example, are suggested by its record in cases involving the U.S. Chamber of Commerce: it supported the Chamber 84 percent of the time. A similar inclination favoring religious organizations would yield interpretations of the Establishment Clause that favored the Church—as in the Hein, Arizona Christian, and Hosanna-Tabor cases.

“Stealth Overruling”

Another touchstone by which to assess, if not measure, the results-orientation of a Supreme Court is the degree of agreement within the Court. In a 2006 interview shortly after his appointment, Roberts expressed his goal that the Court converge around narrow, unanimous opinions. In order to avoid the opposite result, 5–4 ideologically polarized opinions, he would try to persuade his colleagues to embrace narrow, minimalist opinions. Yet in the term following that promise, a full one-third of the Court’s decisions were 5–4, the highest percentage in a decade. Indeed, 5–4 decisions have characterized the Roberts Court. (Hosanna-Tabor has been the most notable variation. The government’s hard line “no-exception” position on employment discrimination most likely alienated some or all of the liberals on the Court.)

In response to this distinct lack of consensus, legal analysts have noted that Roberts has made far-reaching decisions appear less so. His method: the majority and plurality opinions (which are assigned by Roberts) often change or reconceive precedents without formally overturning them. The Court’s treatment of the Flast precedent illustrates the practice. New York University law professor Barry Friedman has called this “stealth overruling.” In response, both Roberts’s liberal and conservative colleagues on the Court have accused him of “faux judicial restraint”—overturning precedent in fact but not in words. One could argue that the Warren Court demonstrated greater courage of its convictions with its more transparent activism.

While the Court can superficially dilute its activism by characterizing these de facto overrules as distinctions, it cannot change its results-orientation. Results speak for themselves.

Franklin Strier is a professor emeritus of law in the College of Business and Public Policy at California State University Dominguez Hills. He is the author of The Adversary System (Fred Rothman & Co.) and Reconstructing Justice (University of Chicago Press).