State Action and the Supreme Court's Emerging Consensus on the Line Between Establishment and Private Religious Expression

Abstract

October Term 1999 looked, on the surface, like a continuation of the longrunning religion wars on the Supreme Court. There were two cases involving religion, raising two of the most contentious hot-button issues in the entire field: school prayer and aid to religious schools. Both cases were decided by six-to-three majorities, and both cases occasioned impassioned dissents. The "liberals" won one, and the "conservatives" won one. Judging from the rhetoric, the two sides are as far apart as ever. In Sante Fe Independent School District v. Doe, the school prayer case, conservative dissenters claimed that the majority "distorts existing precedent" and "bristles with hostility to all things religious in public life." In Mitchell v. Helms, the school aid case, liberal dissenters characterized the plurality opinion as "a doctrinal coup" and accused those who joined the opinion of "attacking the most fundamental assumption underlying the Establishment Clause, that government can in fact operate with neutrality in its relation to religion."

Two decisions, so closely divided and won by opposite sides, may not appear to be promising material for bringing harmony and coherence to what the lower court in one of the cases called "the vast, perplexing desert" of the Court's Establishment Clause jurisprudence. Yet I will make that claim. Shorn of their confrontational rhetoric, these cases strongly suggest that the Court is on the verge of consensus regarding the fundamental values served by the Establishment Clause. Although expressed in somewhat different language, the principle of the majority opinion in Santa Fe, written by liberal, separationist Justice John Paul Stevens, is essentially identical to the principle of the plurality opinion in Mitchell, written by conservative, accommodationist Justice Clarence Thomas. Both opinions treat as decisive the question: Was the religious activity that took place properly attributable to the government or to private parties? If attributable to the government, then the legal arrangements supporting the religious activity are unconstitutional, as an establishment of religion. If attributable to private parties, then the legal arrangements are permissible, and any attempt to censor or discriminate against private religious activity would, at a minimum, raise serious questions under the Free Speech and Free Exercise Clauses.

In short, the emerging Establishment Clause jurisprudence can be seen as a specialized application of the state action doctrine. Contrary to popular impression, the Establishment Clause is not "hostile," nor is it favorable, to religion; it stands for the proposition that religious activity and advocacy must be a product of the private judgments of individuals and groups. If religious activity is instigated, encouraged, or-in the strongest case-coerced by the government, the government's acts are unconstitutional. But if religious activity is the product of private judgment, it is permissible-even welcome-within the public sphere. Thus, religion must be private in its provenance, but need not be private in its expression or effect, and need not be cut off from public forums and generally available public programs. The public sphere must be neutral and pluralistic; it need not be secular.

The "state action" line is a useful way to address issues under the Religion Clauses because the values served by the Religion Clauses depend-perhaps more than any other constitutional questions-on the distinction between public and private. Most constitutional provisions concern conduct that is wrongful, whether engaged in by private or public actors. For example, the Equal Protection Clause also has a state action requirement, but racial discrimination is generally odious and, in most cases, illegal, whether practiced by public or private parties. The taking of private property without just compensation is called stealing when done by a private person and unconstitutional when done by the state. The Religion Clauses are different. Precisely the same conduct-leading prayers, for example-is constitutionally valued and protected if engaged in by private parties, though unconstitutional ifdone by the government. Unlike most constitutional provisions, therefore, the Religion Clauses are not about wrongful conduct but about ensuring that the time, manner, degree, and theological substance of religious activityin the nation are determined by individuals, families, religious groups, and other private associations. The evil against which the Establishment Clause is directed is not religion, but government control over religion.