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Count Your Clauses

November 18th, 2005 · 2 Comments

Over at Hit and Run, my colleague Jacob Sullum links to this story about dueling ads in the fight over Samuel Alito. This statement from a spokesman for the aggressively secular People for the American Way caught my eye:

As for the commercial attacking his group, Mr. Minceberg said it falsely charged that People for the American Way had opposed recitation of the phrase “under God” in the Pledge of Allegiance. He said his group considered the question too close to call because the phrase could be read to be merely ceremonial and not coercive.

Now, I think the best (albeit still not persuasive) case to be made for the constitutionality of that “under God” is that it’s merely ceremonial and, at any rate, too trivial for the courts to bother much about. But Minceberg’s unfortunate phrasing above suggests that “ceremonial” and “coercive” are exhaustive of the option—that if some governmental expression of a religious view is not coercive (say, because kids can opt out of saying the pledge) then it gets a pass on Establishment Clause review. I doubt the folks at PFAW really take that view, but you certainly hear it a lot from those who find a spoonfull of Jesus makes their government go down better.

Leave aside the question of whether a formal opt-out right genuinely purges the coercion from a ritual recitation led by a teacher, especially where younger children from unpopular faiths (or lack thereof) are concened. Should we regard coercion as a sine qua non for an Establishment Clause offence? Because if that’s supposed to be the standard, you have to wonder: Why bother having two religion clauses? That is to say: If all the establishment clause does is prevent government from forcing you to behave in conformity wtih some religious mandate, what work is it doing that isn’t already accomlished by the Free Exercise clause? If I’m compelled to affirm the existence of one God, that’s obviously going to impinge upon my exercise of my beliefs as either a polytheist or an atheist—or possibly, in the context of the pledge, of some other monotheist denomination that finds it presumptuous to imply that one’s nation is particularly beloved of the Almighty.

It’s easy enough, of course, to think of laws and practices that would violate both clauses. But the Establishment Clause has to be read as covering at least some non-coercive government conduct, or we’re forced to conclude that the clause is just redundant. And that violates a basic canon of constiutional construction: Don’t read clauses in a way that assumes the Founders were just wasting parchment duplicating other provisions. If there are two clauses rather than one, assume that they must each be doing some independent work—that it would matter if you got rid of one.

That’s why the language of a lot of Establishment Clause case law uses the language of “endorsement,” not coercion: The government isn’t supposed to take sides on contested religious questions, whether or not it’s compelling anyone else to take the same side.

Tags: Law



2 responses so far ↓

  • 1 Jon Rowe // Nov 20, 2005 at 2:57 pm

    I think the response that those desiring a very narrow reading of the Establishment Clause would take is that the EC prohibits government, perhaps only the federal government, from enacting an official sect, or otherwise offering privileges to one sect to the exclusion of others.

    I think Justice Thomas, who doesn’t want the EC incorporated at all, recently pointed out that if the EC were properly incorporated, what would be incorporated is little or nothing more than what the Free Exercise Clause already protects. So he in essence made a similar point to yours but came to the opposite conclusion: Because it would be redundant to incorporate a proper understanding of the Establishment Clause, we shouldn’t incorporate it at all.

  • 2 Matt Tievsky // Nov 20, 2005 at 7:21 pm

    Though I’m not asserting it’s correct, treating the Establishment Clause as “no coercion” doesn’t necessarily render it redundant with respect to the Free Exercise Clause.

    Even under a coercion test, targeted government funding of a religious sect could run afoul of the Establishment Clause–since it compels taxpayers to support a religious establishment–without violating the Free Exercise Clause, since it doesn’t impede religious practices any more than other taxing & and spending. In fact, I’m not aware of any government spending that’s ever been struck down on Free Exercise grounds.