Judicial Enforcement of the Establishment Clause

By Garnett, Richard W. | Constitutional Commentary, Summer 2008 | Go to article overview

Judicial Enforcement of the Establishment Clause


Garnett, Richard W., Constitutional Commentary


There is--no surprise!--nothing doctrinaire, rigid, or formulaic about Kent Greenawalt's study of the establishment clause. He works with principles and values, not "rules" or "tests" (although he finds more to admire in the "Lemon test" than many courts and commentators do (1)). In Establishment and Fairness, the discussion and analysis are almost always highly sensitive to context, the conclusions almost always fact-bound. There is, throughout the project, a consistent openness to the possibility--indeed, to the likelihood--that different circumstances will call for different results. (2) His approach, he says, is a "sensible, nuanced" one, which "involves a number of debatable choices and does not reduce to any simple formula" (p. 433). In his view, the way to understand how the Constitution's religion clauses "should best be understood" is not by asking questions "in the abstract but by focusing on concrete issues in context" (p. 543).

Clearly, this wonderful book is a great achievement. It is impossible not to admire the reasonableness, humility, and charity that characterizes and animates this work, and Greenawalt's entire scholarly career. That said, one has to ask: Is Greenawalt's reluctance, in the establishment clause context, to settle on bright-line rules a "good thing" or a "bad thing"? Is his "sensible, nuanced approach" the right one, or even an attractive one? And if it is--if Greenawalt's approach to establishment-and-fairness questions, his appreciation for the values that are at stake in the relevant cases, and his sense that the relevant principles are basically sound--then what are the implications of his approach for the challenge of finding and implementing the establishment clause's judicially enforceable content? "It is," Greenawalt insists, "in the nature of fundamental constitutional principles that their full content is never settled once and for all" (p. 543). Perhaps. We do, however, routinely ask judges to identify and "settle"--at least for the time-being--the implications of such "principles" in the context of real-world lawsuits. Should we?

Early in the book, Greenawalt addresses various forms of "skepticism" about "tests for the Establishment Clause," including the view that "the clauses reflect such complex, often conflicting, values, that no tests can do them justice" (pp. 51, 52). In my view, this "skepticism" is well founded, and Greenawalt does not dismiss it) The truth in these doubts should give us some pause: What, exactly, and with what justification are judges deciding establishment clause cases doing when they invalidate or approve the actions of governments and officials in the name of "complex, often conflicting values"? Even if "the rule of law" is not only a "law of rules," (4) is it troubling to think that resolving disputes about matters so important and basic as the place of religion in public life, and the connections and boundaries between religious and political authorities, depends on the deployment of imperfect, incomplete doctrine by judges who will not always be as learned and sensible to "complex, often conflicting values" as is Kent Greenawalt? If deciding establishment-and-fairness cases involves--if it inescapably involves--questions like "whether instituting a moment of silence will significantly endorse prayer and will have a detrimental effect on those of minority faiths and nonbelievers" (p. 118) (emphasis in original); if "[j]udges reviewing school efforts to teach about religion face hard questions about supervision and control" (p. 135); if "judicial determinations of improper purpose" are inevitably attended by "various subtleties" (p. 163); if these cases necessarily present (to a greater extent than every interesting legal question does) questions of degree, balancing, trade-offs, and multiple values, then why should we believe that they are best, or even better, resolved by judges through litigation than by citizens, officials, and legislators through politics? …

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