In my last post, I argued that had the Supreme Court -- a la Justice Thomas's concurrence in the Town of Greece case -- never "incorporated" the Establishment Clause against the States, it might still have developed broadly similar limits on state authority by way of the Free Exercise Clause. (It might also have done so by way of Equal Protection or Due Process or otherwise, but I'm going to focus on Free Exercise here.)
I want here to suggest three observations -- not so much full-blown arguments as data points -- supporting that counterfactual conclusion.
1. Let's go back to Everson, the case that, without much analysis, incorporated the Establishment Clause in the first place. Justice Black's opinion is Everson is famous for erecting a "high and impregnable" wall between church and state, and then finding that New Jersey didn't breach that wall by providing bus transportation to religious schools. But be that as it may, the point I want to focus on here is that Justice Black, and even more so Justice Rutledge in dissent, took as the canonical guide to the meaning of the Establishment Clause James Madison's famous Memorial and Remonstrance opposing a proposed tax in Virginia for the support of religious schools. Madison, though, wrote the Remonstrance in 1785 well before the drafting of the First Amendment. And the Remonstrance is remarkable, in hindsight, precisely because Madison so intimately tied what we could call the anti-establishment no-aid principle with what we could call a free exercise principle. Just look at how the first in the numbered arguments of the Remonstrance takes us straight from a Jeffersonian principle of individual religious liberty to a "jurisdictional" account of the limits of state authority:
Because we hold it for a fundamental and undeniable truth, "that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.
And now notice how his much of his discussions of the evils of "establishment" is so deeply embedded in arguments about religious liberty:
Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? 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 other establishment in all cases whatsoever?
To be sure, the Remonstrance also contains broader structural and theological arguments, but even those return to a concern for liberty and the fear of tyranny.
The point here, I really need to emphasize, is not that (as some conservatives would argue) anti-establishment principles are reducible to a mere protection of individual liberty, but that the idea of religious liberty opens up to a broader, essentially jurisdictional, divide between church and state.
This is not, of course, just my reading. Justice Rutledge's dissent saw very clearly the larger connecting thread in Madison's Remonstrance. As Rutledge read Madison's argument:
State aid was no less obnoxious or destructive to freedom and to religion itself than other forms of state interference. "Establishment" and "free exercise" were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom. The Remonstrance, following the Virginia statute's example, referred to the history of religious conflicts and the effects of all sorts of establishments, current and historical, to suppress religion's free exercise. With Jefferson, Madison believed that to tolerate any fragment of establishment would be by so much to perpetuate restraint upon that freedom. Hence, he sought to tear out the institution not partially, but root and branch, and to bar its return forever.
So imagine now that the Court's majority in Everson had anticipated Justice Thomas's argument and decided that the Establishment Clause, as a "federalism provision," could not be incorporated against the States. Would it have taken much of a leap to rely on Madison's Remonstrance to read the no-aid anti-establishment principle into Free Exercise?
2. Now consider that other constitutions and human rights documents elsewhere in the world manage to reach what we could call "Establishment Clause" concerns relying only on what we would call "Free Exercise" provisions. That's not to say that they always reach U.S.-style conclusions. Sometimes, as in the European Court of Human Rights' Lautsi decision, they are less separationist; sometimes, they are more separationist. But the point is that they manage to articulate church-state principles without an explicit church-state provision.
The Supreme Court of Canada, in striking down certain federal Sunday Closing Laws, faced this issue squarely. As Chief Justice Dickson put it,
It is the appellant's argument that unlike the American Bill of Rights, the Canadian Charter of Rights and Freedoms does not include an "establishment clause". He urged therefore that the protection of freedom of conscience and religion extends only to the "free exercise" of religion. In the American cases to which I have referred . . . Sunday observance legislation has been dealt with by a majority of the court as only presenting a potential violation of the anti-establishment principle. It is said to follow from the purported absence of such a principle in the Charter that the Lord’s Day Act does not in any way affect the guarantee in s. 2(a). . . .
In my view this recourse to categories from the American jurisprudence is not particularly helpful in defining the meaning of freedom of conscience and religion under the Charter. The adoption in the United States of the categories "establishment" and "free exercise" is perhaps an inevitable consequence of the wording of the First Amendment. The cases illustrate, however, that these are not two totally separate and distinct categories, but rather, as the Supreme Court of the United States has frequently recognized, in specific instances "the two clauses may overlap". . . .
3. Finally, consider the Town of Greece case itself. As a simple thought experiment, try rewriting the majority and dissenting opinions in terms that alluded more specifically to the Free Exercise than the Establishment Clause. You'll find it remarkably easy to do. Of course, writing Town of Greece as a Free Exercise case would require a more expansive and more structurally-sensitive account of Free Exercise than we now take for granted. But, again, that's exactly my point -- had the Establishment Clause not been incorporated in the first place, the Free Exercise Clause might well have taken on some of that conceptual slack.
To be sure, anti-establishment principles filtered through the Free Exercise Clause would likely not be identical to anti-establishment principles filtered through the Establishment Clause. Textual pegs do matter. But I'm not suggesting an identical outcome in this counterfactual reconstruction (as I've said, counterfactuals are dicey), only one that's close enough to confound the hidden assumption in Justice Thomas's dissent.
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Finally, a brief word on two possible objections to my argument here.
First, I can imagine someone arguing that a Free Exercise Clause encompassing anti-establishment principles would render the Establishment Clause superfluous. But ... aha ... if the Establishment Clause is indeed, as Justice Thomas argues, primarily a federalism provision, then it would not be superfluous at all.
Second, should we worry that, if the Establishment Clause is read a federalism provision, it would block this sort of broader reading of the Free Exercise Clause? No, not really. Maybe, the Establishment Clause did (or even does) limit the power of Congress to constrain state establishments of religion. But that would not stop the Constitution itself, in a post-14th Amendment world, from vindicating the principles in the Bill of Rights against the States.
Updated to put back inexplicably-omitted text.
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