For all modern man’s conceits to surpassing his forefathers in knowledge, he remains fascinated by walls and convinced of their necessity. It was with such conviction that the Supreme Court began in the middle of the 20th century to erect the most significant wall in American history, one standing between church and state.
Beginning with the 1947 decision in Everson v. Board of Education, the Supreme Court built the wall’s legal edifice to impressive heights. Through an expansive reinterpretation of the Establishment Clause, the Court encircled the public square with a revised secular civic religion, the better to cut off any residual influence from its Christian forebearer.
Even the current Court, though celebrated for some of its rulings favorable to religion’s free exercise, hesitates when deciding cases in the wall’s shadow. It opens gaps carefully while warding off other challenges from the ramparts. But gradually the current Court is making that wall, if not lower, then more permeable.
Despite apparent setbacks in cases concerning religious charter schools and the protection of Apache religious sites, that trend can still continue this term.
Under rulings issued since 2013, public officers including legislators and judges may commence official proceedings with prayer; state governments must allow religious institutions to participate in publicly available benefits programs for which they are otherwise qualified; a public school employee may engage openly in private prayer while on campus; and government at all levels contracts with religious organizations to provide social services.
This term, the Court is likely to hold in Catholic Charities v. Wisconsin that the state wrongly denied a tax exemption to Catholic Charities when it concluded the organization’s charitable works were secular. More significantly, the Court in Mahmoud v. Taylor is poised to hold that public schools cannot compel students to partake in lessons on gender and sexuality that violate their parents’ religious convictions.
After years when the Court’s most significant religion cases concerned Santeria animal slaughter, native peyote usage, and Muslim prison beards, it is significant that many recent decisions permit public forms of traditional Christian expression. Rather than extending toleration to a peripheral sect, the Court is permitting the nation’s historic religion to participate in public life, albeit on a footing nominally equal to any other religion.
America is far from the broadly Christian civil religion that prevailed before the 1960s. Still, in the tenure of Chief Justice John Roberts, the wall of separation can no longer be described as “high and impregnable,” words Justice Hugo Black once wrote as if hoping that his rhetorical force would lend the wall concept a solidity that it was lacking.
The Roberts Court, however, hardly lacks wall-builders. Justice Sonia Sotomayor, dissenting from the Court’s 2017 decision in Trinity Lutheran v. Comer, maintained that states could lawfully exclude a religious institution from a public benefits program lest public funds benefit the church’s sectarian mission even indirectly.
In Carson v. Makin, she and Justice Elena Kagan joined Justice Stephen Breyer’s dissent from the Court’s majority which held that Maine could not exclude religious schools from its public tuition assistance program, thereby enabling the use of public funds for a religious purpose. Trinity Lutheran, Breyer maintained, precluded states from discriminating based only on the religious status of an institution while still permitting states to prevent public aid from serving religious purposes. The Carson majority, well aware of the distinction between religious status and religious use, denied the distinction’s constitutionality, with Roberts writing that the Court’s prior decisions had “never suggested that use-based discrimination is any less offensive.”
Undeterred, Justice Ketanji Brown Jackson, a former Breyer clerk, recently tried to revive the religious use distinction in the case of Oklahoma Statewide Charter School Board v. Drummond. During oral arguments, she asked counsel for the school why the state could not exclude religious institutions from a program of secular education. When counsel responded that “building the secular requirement into the … definition of the benefit creates the same error” that the Court had corrected just two years ago in Carson, Jackson responded “I have to go back and take a close look at Carson.”
Whatever Jackson’s reread of Carson yielded, it was not a change of heart. On May 22, with Justice Amy Coney Barrett recused, the Court announced that it had split 4-4 on the merits of the dispute, affirming by default the Oklahoma Supreme Court decision to exclude religious entities from the charter school network. As happens in such split decisions, no rationale was given, and the votes remained anonymous though there can be little doubt as to how Jackson, Sotomayor, and Kagan voted.
Still, Jackson’s questions at oral argument were and remain puzzling. Not only had Carson put an end to states invoking a feared religious use of funds to discriminate in public programs, but since the 1925 decision in Pierce v. Society of the Sisters of the Holy Name, the Court has recognized that religious institutions can provide an education satisfying a state’s secular standards.
Some observers commented that Jackson was fighting the last battle. But clearly some version of her thinking rallied enough votes for a stalemate in Drummond. More likely, her attachment to a slightly reworked version of the religious-use distinction reflects a permanent feature of the wall debate, in which certain “fallacies” persist because “there is perpetual political demand for them.”
The wall of separation has always been a fiction demanding subsidiary fictions to sustain it. One such fiction is its historic pedigree. No matter how often justices insist that the Founders erected the wall, it has too long been obvious that the Founders did no such thing. Americans established and gave public support to state churches until 1833.
Presidential paragons George Washington and Abraham Lincoln encouraged the nation to take up solemn duties of prayer and thanksgiving. And the early republic’s foremost interpreter of the Constitution, Justice Joseph Story, said in his famous Commentaries that “at the time of the adoption of the Constitution … the general if not universal sentiment in American was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience.” None of those views or practices was offensive to the Establishment Clause.
That is because the Founders and generations of Americans thereafter understood that religion has institutional, public, and communal dimensions. It is not primarily the property of idiosyncratic individual minds. To pretend that two forces as ubiquitous as the state and religion could be completely isolated from one another was neither practical nor, in many instances, desirable. Only a 20th-century court accustomed to making the individual the measure of all things could concoct the second fiction: that religion is a matter confined to the conscience and private prayers of the solitary believer.
When all else fails, the wall-builders make grim predictions of imminent sectarian “strife and conflict,” threatening a return of the types of conflict “that had long plagued European nations” during the 16th and 17th centuries. Setting aside the lack of factual parallels between that era and ours, a far more present conflict reigns between religious believers and those organs of government that conflate secularism with neutrality, adopting anti-religious postures under the guise of guarding against religious establishment.
Recently, the Supreme Court’s majority has turned its attention to this more immediate conflict, addressing some of the negative side effects from their predecessors’ detour behind the wall. For the Carson majority, there remains, of course, a conceptual distinction between church and state, but the better analogy for that division is not a wall but a membrane through which certain forms of reciprocal influence might pass.
The inconclusive Drummond result does not disprove that view. At least four of the six justices in Carson are prepared to extend that decision to public charter schools run by private third parties and one (Barrett) has yet to make her views known. The same sort of dispute is likely to return to the Court and demand that the justices state for the public their view of the merits. And when it does, it should not be assumed that there are even four justices willing to attach their name to an opinion denying religious participation in that kind of educational project.
Meanwhile, the (expected) victory in Mahmoud would stanch secularist efforts to force traditional religious believers out of public institutions.
Drummond does, however, evidence the wall concept’s durability despite its rational and historical deficiencies. Although the wall has adherents on the Court and elsewhere in the legal profession, those propping it up cannot be understood as restoring a promise of the founding nor as mediators standing athwart irrational warring factions. Instead, they are sectaries of another sort, adherents to the new “successor civil religion” of secular individualism, which they are trying to defend against backsliding.