Gabrielle Girgis (University of Notre Dame) has posted The Establishment Clause After Kennedy: Principles and Applications on SSRN. Here is the abstract:
In Bremerton v. Kennedy, the Supreme Court appears to have fully rejected its “Lemon test” for interpreting the Establishment Clause, in favor of a new “hallmarks test” developed from the influential work of Michael McConnell and Nathan Chapman. Against the Lemon test’s abstract rules requiring that laws have a secular purpose, a neutral effect on religion, and avoid entangling religion and government, a hallmarks test would decide whether a law violates the Establishment Clause based on how closely it tracks the features of historical establishments (known to the framers at the time of the Constitution’s drafting and ratification). But as numerous scholars have argued, and Justice Gorsuch seems to signal in his Kennedy opinion, the hallmarks test cannot be reliably applied one way or the other without some underlying broad principle, such as neutrality or no-coercion. That principle, the argument goes, must reflect the overarching purpose of the Establishment Clause. It thus sheds light on which historical establishment practices ran afoul of that purpose. It also helps us identify more precisely when contemporary policies have crossed the same line.
This Article contends, however, that a further interpretive step is required. Like the hallmarks themselves, broad principles aren’t enough. For just as the hallmarks presuppose an underlying principle that tells us how any hallmark is relevant to a given case, the principles too presuppose an account of the values at stake in religion, for harm to those values is ultimately what makes religious establishments problematic. In other words, interpreting the Establishment Clause after Kennedy requires going deeper than practices and broad principles: some premises about the goods of religion itself (and their social effects) will shape both which principles one thinks best protect against the harms of establishment, and—crucially—how one specifies those principles for individual cases.
While our Religion Clauses caselaw doesn’t (and couldn’t be expected to) propose a developed theory of religion’s value, the Article lays out two different accounts—what we could call identitarian and integrative views of religion—that can make sense of recurring patterns, and even seeming inconsistencies or blind spots, in Establishment precedents. An identitarian view sees religion as valuable for its shaping of the self and is concerned about mitigating religion’s divisive social effects when government endorses or funds it. It explains why separationist opinions tend to favor a principle of neutrality, read as requiring government non-favoritism of any one religious identity, or religious identities over non-religious ones. By contrast, an integrative view sees religion as a distinctly motivating and unifying good—both for individuals and communities—of relationship to a transcendent source of reality, the existence of which can be known through reason. This view accounts for accommodationists’ emphasis on coercion. On this account, no-coercion protects against institutional interference with the integrity required for one’s relationship to the transcendent. That integrity is undermined, the argument goes, when government endorses or funds only one sect, or conditions political benefits on religious practice. But crucially, this view of religion also permits some forms of government recognition or support for religion’s unique integrating effect on the political community itself. This includes non-denominational forms of legislative and school prayer or public displays.
The explanatory power of these accounts of religion’s value and social role suggests that courts and scholars of religion law should turn from disputing the usefulness or objectivity of history, and from the quest to find one core principle contained in the Establishment Clause. Instead, they should become much more transparent about underlying value judgments of religion that can explain the selection of principles, and their applications, in every case.
Highly recommended.