In 1990 the High Court took a wrecking ball to the free exercise clause. Now it’s wake-up time, America, because the Supreme Court is only one vote away from decimating the establishment clause. Forces on the Court over the past 10 years have worked to reduce the protections of the First Amendment’s religion clauses to what some would see as a meaningless shell.
When Justice Antonin Scalia was appointed to the Court by a president endorsed by religious conservatives, most thought the free exercise clause was secure. But in 1990 Justice Scalia removed the core from free exercise protections when he decided in Employment Division, Department of Human Resources v. Smith 1 that a neutral law of general applicability was not unconstitutional, no matter how severely it trespassed on people of minority faiths.
On June 28, 2000, Justice Clarence Thomas decided a case against the Jefferson Parish, Louisiana, School District 2 that augurs the demise of James Madison’s protections against compelling Americans to pay taxes to support another’s religion. He did this by shrinking the establishment clause to merely a simple test of neutrality. Three members of the Supreme Court, including the chief justice, joined with Justice Thomas in what is called a plurality opinion (meaning a majority of the Court could not agree). Mitchell v. Helms challenged a federal program that gave religious schools millions of dollars of equipment and materials that could easily be used for religious purposes.
Fortunately, Justice Sandra Day O’Connor rejected the plurality’s sweeping neutrality argument, observing that Thomas’s opinion “holds that the actual diversion of secular aid by a religious school to the advancement of its religious mission is permissible.”3
Professor Erwin Chemerinsky, constitutional law scholar at the University of Southern California Law School, succinctly summarized the three distinct opinions issued by a fractured Supreme Court in Mitchell this way: Justice Thomas’s plurality opinion’s test finds any aid to religious schools valid if it appears on the program’s face to be religiously neutral. Justice O’Connor’s opinion concurring in the judgment concludes that neutrality is insufficient, and such aid is invalid if it is used for religious instruction. Finally, Justice David Souter for the dissent argued that such state aid is unconstitutional if it is likely that it can be used for religious instruction.
Justice Thomas departed radically from existing law in Mitchell. In its decisions addressing financial aid to pervasively sectarian institutions from Everson v. Board of Education 4 to the last day the Supreme Court convened in June 2000, the Court has charted a somewhat meandering course, yet always recognized, as Thomas Jefferson so eloquently insisted, that “it is sinful and tyrannical for any man to be forced to support a religion to which he does not believe.”5
In fact, a central principle of the establishment clause is the ban against using the proceeds of a general [tax] assessment in support of religion, “a practice which lies at the core of the prohibition against religious funding.”6 This ban has a lineage that reaches back to early debates over the use of money to support religion in the 13 original colonies and led to the insertion of the establishment clause placed as the first 10 words of our Bill of Rights.
In Mitchell,Justice Thomas admits his First Amendment neutrality concept would not prevent tax-derived funds from being used for religious indoctrination. Rather, he concludes that only indoctrination “attributable” to government is prohibited under the establishment clause but that “attribution of indoctrination is a relative question.”7 For him and three other justices, if the aid is provided to a “broad range of groups,” the religious indoctrination may not be attributed to the government and is perfectly permissible regardless of the nature, degree, and extent to which monies extracted from the taxpayer are used by a sectarian institution.8
In fact, Justice Thomas rubbed salt into the wounds of those who still believe tax money should not be diverted for proselytizing. First, he admitted that in Louisiana “there is evidence of actual diversion and that, were the [program’s] safeguards anything other than anemic, there would almost certainly be more such evidence.” But he dismissed the diversion as irrelevant under his neutrality test. (Justice O’Connor argued that diversion is a relevant constitutional concern and thus there must be safeguards against tax-derived funds being diverted to religious indoctrination. She, however, concluded there was insufficient evidence of diversion to religious use in Jefferson Parish, Louisiana.) Second, Thomas asserted that opposition to such aid springs from anti-Catholic bigotry.9 He asserted that proscription against using taxpayer money for sectarian activities equals hostility to religion. Thus religious institutions have an equal claim to the public till.10 Jefferson and Madison would have been dismayed to learn that prohibiting the use of tax money to operate religious institutions was an act of religious hostility.
Thomas also seemed careless of the fact that one of the Mitchell plaintiffs is a lifelong committed member of the Roman Catholic Church who sent her children to Catholic schools but opposed tax funds being used for any part of the religious mission of her own parish church’s parochial school. This was for two reasons: first, it forced her non-Catholic neighbor to support her parish’s educational mission, and second, she was deeply concerned about the spiritual compromise that always results when the state attempts to secularize religion.11
In Mitchell Justice Thomas followed the lead of one of the cosigners of his opinion in finding only neutrality as the core value of the religion clauses. Earlier in 1990 Justice Scalia, while sacrificing the protections afforded by the free exercise clause on the altar of neutrality, ignored the fact that the Bill of Rights (including the religion clauses) is designed to protect the minority from the dictates of the majority. He concluded: “It may fairly be said that leaving accommodation [of one’s religious convictions] to the political process will place at a relative disadvantage these religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself.”12
William B. Ball, the attorney who defended the Amish parents in Wisconsin v. Yoder 13, criticized Smith, stating that the “peril posed in Smith is precisely that it closes the door to real consideration of government accountability.”14 Ball argued that Scalia’s Smith decision requires that “free exercise protection must be sought mainly in the legislature, and there the political powerless almost certainly will fare ill.”15
Responding to Justice Scalia’s extremism in Smith, which concluded that neutrality was the key to free exercise of religion, Justice O’Connor said that for Scalia to “reach this sweeping result, the Court must not only give a strained reading of the First Amendment but also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct.”16 Justice O’Connor argued against justifying the majoritarian oppression of those having religious convictions on the claim of democratic necessity, adding:
“The Free Exercise Clause of the First Amendment commands that ‘Congress shall make no law . . . prohibiting the free exercise [of religion].’ Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must be at least presumptively protected by the Free Exercise Clause.”17
But the Smith majority would have none of this. Scalia in Smith uttered these frightening words, that carried with them the mandate of an all-powerful Supreme Court:
“Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference,’ . . . and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest [of the state] of the highest order.”18
Responding to Justice Scalia’s argument that the “disfavoring of minority religions is an ‘unavoidable consequence’ under our system of government and that accommodation should be left to the political process,” Justice O’Connor retorted: “The First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility.”19
Following Smith, constitutional law scholar Douglas Laycock of the University of Texas, stated categorically that “Smith creates the legal framework for persecution.”20 Thomas C. Berg, a professor of law at Samford University’s Cumberland School of Law, observed that the “Smith [decision of Justice Scalia] led to a slew of lower court decisions allowing impositions on religious conscience.”21 And Chuck Colson, Prison Fellowship Ministries chair, lamented that Scalia’s decision in Smith resulted in “egregious attempts to restrict religious liberty in prisons, schools, zoning determinations and even in church tithing disputes.”22 J. Brent Walker, executive director of the Baptist Joint Committee on Public Affairs, forcefully argued that in Smith “the Supreme Court dropped a constitutional bombshell that blew apart the free exercise clause and gutted it of any meaningful protections.”23
Justice Scalia’s and Justice Thomas’s minimalist approach to the free exercise clause was a precursor to their corresponding mistreatment of the establishment clause in Mitchell. Like Smith, the Mitchell opinion would strip the establishment clause down to only a requirement of government neutrality. And, under Justice Thomas’s opinion in Mitchell, the only protection against an individual being forced to financially support religious indoctrination against his or her will would be through the legislature. And there, the demands by the majority religions to have the taxpayer pay for their proselytizing efforts generally prevail against the nonadherent.
Thomas, while he claims to adhere to our founders’ original intent, makes a mockery of James Madison’s insistence that it is a denial of equal rights to force Americans to support a religion in which they do not believe.24 But in Mitchell four justices of the U.S. Supreme Court—Chief Justice Rehnquist and Justices Thomas, Scalia, and Kennedy—embrace the logic for this form of tyranny and seemed willing to savage constitutional provisions designed to prevent it. In fact, they went too far for Justice O’Connor, who rejected their extremist view. Referring to Thomas’s opinion, she wrote: “I write separately because, in my view, the plurality announces a rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school-aid programs.”25
Justice Souter, dissenting for himself and two other justices, was even more critical, observing that the plurality opinion “[recognized] that the aid in question here was divertible and that there was substantial evidence of actual diversion [to religious purposes] exists.” Quoting the same paragraph of the plurality opinion as Justice O’Connor, he stated that “as a break with consistent doctrine the plurality’s new criterion is unequaled in the history of establishment clause interpretation.”26
Souter demonstrated how little of the establishment clause guarantees would remain if Thomas’s neutrality view became the law, stating that “adopting the plurality’s rule would permit practically any government aid to religion so long as it could be supplied on terms ostensibly comparable to the terms under which aid was provided to nonreligious recipients. As a principle of constitutional sufficiency the manipulability of this rule is breathtaking. A legislature would merely need to state a secular objective in order to legalize massive aid to all religions, one religion, or even one sect, to which its largess could be directed through the easy exercise of crafting facially neutral terms under which to offer aid favoring that religious group. Short of formally replacing the establishment clause, a more dependable key to the public fisc or a cleaner break with prior law would be difficult to imagine.”27
Justice Souter refers to the Thomas neutrality test as the “most deceptive” establishment clause consideration.28 He noted that if the Court “looked no further than evenhandedness, and failed to ask what activities the aid might support, or in fact did support, religious schools could be blessed with government funding as massive as expenditures made for the benefit of their public school counterparts, and religious missions would thrive on public money.”29
In response to Thomas’s claim that “any inquiry into the pervasiveness of doctrinal content as a remnant of anti-Catholic bigotry (as if evangelical Protestant schools and Orthodox Jewish yeshivas were never pervasively sectarian) and it equates a refusal to aid to religious schools with hostility to religion,”30 Souter wrote: “The fact that the plurality’s choice to employ imputations of bigotry and irreligion as terms in the Court’s debate makes one point clear: that in rejecting the principle of no aid to a school’s religious mission the plurality is attacking the most fundamental assumption underlying the establishment clause, that government can in fact operate with neutrality in its relation to religion. I believe that it can.31
Souter made clear that under Thomas’s neutrality test “little would be left of the right of conscience against compelled support for religion.32
In sending the ominous warning that “if the plurality were to become the majority” the “plurality’s notion of evenhanded neutrality as a practical guarantee of the validity of aid to sectarian schools would be the end of the principle of no aid to the school’s religious mission,”33 Justice Souter reminds us that if the plurality gains one more vote on the Supreme Court, the result will be the mirror image of Justice Scalia’s majority opinion in Smith. That case severely compromised the protections guaranteed by the free exercise clause.
In both Mitchell and Smith legislative bodies drafted legislation that on its face was religiously neutral and merely stated a secular objective. Under such a neutrality test, as applied to both of the religion clauses of the First Amendment, religious practices (despite the free exercise clause) may be drastically impaired and massive financial aid may be funneled to and used by religious institutions for religious indoctrination (despite the establishment clause). Unsurprisingly, both Justices Scalia and Thomas voted to demolish the protections of both the free exercise and establishment clauses by whittling away at the Bill of Rights—every American’s birthright.
It is clear that although seven of the nine justices in Mitchell recognized that money extracted from American taxpayers had actually been used for religious purposes in Louisiana, the plurality argued that such use of public funds taken from taxpayers was permissible. Thus the Court is now one voice from voting that American’s tax money may be allocated in state or national legislatures to propagate religious opinions regardless of the beliefs or nonbeliefs of those American taxpayers.
Justice Souter recalled “Madison’s and Jefferson’s now familiar words [establishing] clearly that liberty of personal conviction requires freedom from coercion in support of religion, and this means that the government can compel no aid to fund it.”34 He quotes Madison’s famous warning that “the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any establishment.”35
Souter also noted that “Jefferson’s Bill for Establishing Religious Freedom provided ‘that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.’”36
But we now find that Justice Thomas’s words mean more than the warnings of Jefferson and Madison.
The new meaning of the Court may well be reinforced. This new president may appoint up to three new justices to the Supreme Court. Any change is unlikely to include Justice Thomas’s seat on the Court, but may well include Justice O’Connor’s.
The Mitchell Court did not decide whether the politically charged issue of giving parents vouchers to use at religious schools would be constitutional. But apparently without deciding the question, Justice Thomas and three others signaled their support for vouchers or any other “neutral” aid. The voucher issue may well be the vehicle for the complete destruction of the establishment clause. Voucher supporters believe they have found support in Justice O’Connor’s Mitchell opinion, which distinguished between funds provided directly to religious schools and funds “provided directly to the individual student,” who, in turn, “made the choice of where to put that aid to use.”37
But, as has been Justice O’Connor’s hallmark, she narrowly rules on the discreet facts of each case and eschews bright-line tests in establishment clause cases because they “defy simply categorization.”38 Rather, for her, “resolution [in such cases] instead depends on the hard task of judging—sifting through the details and determining whether the challenged program offends the establishment clause.”39 And she has disclosed that she would be troubled by money grants that reach the coffers of religious institutions and by aid that is used for religious indoctrination.40
But new appointments the president may make to the Court during the next four years could make Justice O’Connor’s position irrelevant. If vouchers are found to be constitutional, Jefferson’s vision that no person should be taxed to support another’s religion will have been destroyed by the one branch of government designed to protect the rights of the minority.
Within the near future America may well discover a Court abdicating its duty under the Bill of Rights and ignoring Jefferson’s and Madison’s idea that one of the principal purposes of the Bill of Rights is to protect the minority from majoritarian oppression. Jefferson believed that eternal vigilance is the price of liberty. In the past we have viewed the Supreme Court, armed with the Bill of Rights, as the guardian of religious freedom against the heavy hands of government’s majoritarian branches (legislative and executive). How ironic that the demise of Jefferson’s perception of the establishment clause was the subject of a Supreme Court wrecking crew in a case involving a school district named after him.
Lee Boothby is a seasoned litigation and appellate court lawyer, with firsthand experience at arguing a case before the U. S. Supreme Court. He is president of the International Commission on Freedom of Conscience and vice president of the International Academy for Freedom of Religion and Belief. He writes from Washington, D.C.
FOOTNOTES
1 494 US. 872 (1990).
2 Mitchell v. Helms, 120 S. Ct. 2530 (2000).
3 Ibid., p. 2556 (O’Connor, concurring in judgment).
4 330 US. 1 (1947).
5 Julian Boyd, ed., Papers of Thomas Jefferson (1950), Vol. II, p. 546.
6 Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 851 (1995), O’Connor concurring.
7 Mitchell, p. 2541.
8 Ibid.
9 Ibid., pp. 2551, 2552.
10 Ibid., p. 2551.
11 Brief of Respondents in Mitchell, p. 1, n.1.
12 Employment Division, Department of Human Resources, v. Smith, 494 U.S. 872, 890 (1990).
13 406 US. 205 (1977).
14 William B. Ball, “Accountability: A View From the Trial Courtroom,” George Washington L. Rev., 60 (March 1992): pp. 809, 817.
15 Ibid.
16 Ibid., p. 89.
17 Ibid., p. 893.
18 Ibid., p. 988.
19 Ibid., p. 902 (O’Connor concurring).
20 Douglas Laycock, “Summary and Synthesis: The Crisis in Religious Liberty,” George Washington L. Rev., 60 (March, 1992): pp. 841, 849.
21 Thomas Berg, “Religious Freedom After Boerne,” 2 (Fall 1997): Nexus pp. 91, 94.
22 Charles Colson, “The RFRA Case as a Crisis of Constitutional Authority,” Ibid., pp. 21, 22.
23 J. Brent Walker, “Religious Liberty: An Endangered Right,” Ibid., pp. 63, 64.
24 James Madison, Memorial and Remonstrance in Everson,
p. 66.
25 Mitchell, p. 2556 (O’Connor concurring in judgment).
26 Ibid., p. 2590 (Souter dissenting).
27 Ibid., p. 2591, n. 19 (Souter dissenting).
28 Ibid., p. 2578 (Souter dissenting).
29 Ibid., p. 2582.
30 Ibid., p. 2597.
31 Ibid., p. 2597.
32 Ibid., p. 2591.
33 Ibid., p. 2596.
34 Mitchell, p. 2574 (Souter dissenting).
35 Ibid.
36 Ibid., n. 1, citing Jefferson, “A Bill for Establishing Religious Freedom,” in The Founders’ Constitution, P. Kurland and R. Kerner, eds., (1987), p. 84.
37 Mitchell, p. 2558.
38 Ibid.
39 Ibid.
40 Ibid., p. 2566.
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