Scholars of LPE have not to date paid much attention to the Religion Clauses of the First Amendment. However, with the Court’s dramatic refashioning of the Free Exercise Clause and the Establishment Clause—described variously as the collapse of the wall between church and state, the elevation of Free Exercise over Free Speech, and the advent of “most-favored nation” status for religious practice—this neglect merits correction. In this post, I want to briefly explain why these developments should interest LPE scholars beyond a general concern for the so-called culture wars. The shifting balance between Free Exercise and Establishment, I will argue, is part of a broader conservative project to use law to reconstitute the public/private divide to serve a conservative Christian social vision.
***
Modern Establishment Clause jurisprudence can be traced to 1962 when, in Engel v. Vitale, a 6-1 Court ruled it unconstitutional for New York to require public school teachers to begin each day with a nondenominational prayer promulgated by the state. The majority rested its decision on the view that such a government-generated religious practice “breaches the constitutional wall of separation” between church and state. Justice Douglas concurred in the judgment, but for different reasons. It didn’t particularly bother him that teachers were required to say the prayer because students were not. To him, the heart of the case was that the government had financed religious exercise. Paying for prayer “inserts a divisive influence into our communities,” he wrote, violating the government’s obligation to remain neutral toward religion. Douglas’s sensitivity to the proper balance between religious freedom and government neutrality would reappear in the subsequent cases of the 1960s and, ultimately, in Lemon v. Kurtzman in 1971, give rise to the what is known as the “Lemon test”: Regulations do not implicate the Establishment Clause where they 1) have a secular purpose, 2) neither promote nor inhibit religion, and 3) avoid “excessive government entanglement with religion.”
Or so it went until this past term. In twin cases, the Court found that public schools must allow school officials to pray publicly during school events, and that a state must subsidize religious education where it directs public money toward private secular schools. For at least forty years these activities had been understood to violate the Constitution; over the past few years the Court has found them permissible. Now, they are constitutionally required. As leading law and religion scholar Micah Schwartzman quipped on twitter, “the Establishment Clause violates the Free Exercise Clause”?
These cases should be understood within the context of the conservative legal movement, whose libertarian and Christian wings have orchestrated a two-step process to shift the democratic articulation of public values and the allocation of public resources to private religious power. The first step, which has been much remarked upon by LPE scholars, is to privatize public goods and services. The second step is to eliminate the distinction between religious and secular in the newly empowered private sphere. In Polanyian terms, their objective is to replace the New Deal settlement not with a libertarian vision of market freedom, but rather an arrangement in which the market is embedded in a conservative Christian social vision.
This was the gambit behind Fulton v. Philadelphia, a 2021 case where a conservative Christian legal nonprofit (Alliance Defending Freedom or ADF) sought to compel the city of Philadelphia to contract with a Catholic charity for foster care services. The city had declined to do so because the Catholic charity in question refused to place foster children with same-sex couples, and the city had a legal obligation to avoid providing city funds to organizations that discriminate against gay people. In a unanimous decision, the Court ruled that the city violated the Free Exercise Clause on the grounds that Philadelphia did not have a compelling interest in denying an exception to the charity. The fact that public social goods had already been privatized – the foster care services in question had been provided by private charities for quite a long time – was used as a justification for the Court to reach back through the public/private partnership to replace civic values with the social preferences of the private religious entity.
The school funding case from this summer, Carson v. Makin, took a similar form. Maine mandates the availability of public schools in its Constitution, but many parts of the state are so sparsely populated that they don’t have their own schools. To meet the constitutional requirement, Maine created a program to subsidize private schooling for kids in those areas. Families select which school they want, consistent with some restrictions, including a requirement that the private school be “nonsectarian.” Two families sued the Maine Department of Education, challenging the nonsectarian requirement under the Free Exercise Clause (among other constitutional arguments). They argued that it violated their freedom of religious expression for Maine to decline to subsidize their childrens’ education at two Christian schools. One school “does not believe there is any way to separate the religious instruction from the academic instruction;” the other “provides a ‘biblically-integrated education,’ which means that the Bible is used in every subject that is taught.” The Court struck down the “nonsectarian” requirement, ruling that Maine is required to subsidize religious education through the program.
In doctrinal terms, the decision made two important breaks with precedent. A previous case had held that “a State may, consistent with the Establishment Clause, provide funding to religious schools through a general public funding program.” As Justice Breyer pointed out in dissent, Carson converts that may into a must. The earlier case also distinguished between situations where the government refuses to subsidize a religious organization “solely because of its religious character” and those where the funding is withheld because the funding would advance “religious uses,” i.e. using state funds to promote a particular faith. Carson erased that distinction (see Breyer and Sotomayor dissents for more.)
If we take a step back from these particular doctrinal moves, however, the similarity to Fulton comes into view. Maine sought to provide a core public service – public education – perhaps the cornerstone of democratic society. For reasons of geography and finances, the state outsourced education provision to private schools. As in Fulton, privatization is only half the story here. The second step for the conservative legal movement is to sidestep the Establishment Clause by converting previously constitutional distinctions between religious and secular into instances of unconstitutional religious discrimination. This is the flip side of a more well-recognized phenomenon – see the pathbreaking work of scholars like Elizabeth Sepper – whereby private institutions, like hospitals, and professional functions, like high school teachers, are converted into religious ones for the purposes of escaping anti-discrimination rules.
In this brief sketch, I hope I’ve begun to suggest that our account of how law shapes the public/private divide is incomplete without a deeper understanding of recent changes in the Religion Clauses. With one hand the conservative legal movement has shifted the line between public regulation and private ordering to relegate public values to private whims. As scholars, we should follow those decisions across the public/private divide to inquire about the nature of private power over social organization, to see the role that conservative Christian cause lawyers, alongside libertarian peers, are playing in the reconstitution of American political economy.
