Last Wednesday, Professor Steven Gey of the Florida State University School of Law and Professor Marci Hamilton of the Cardozo School of Law discussed the future of establishment clause rulings from the U.S. Supreme Court.
Professor Gey spoke first, discussing recent Supreme Court decisions that indicate the court’s tendency to favor religion in establishment clause cases. One of the better-known recent cases is Hein v. Freedom of Religion, in which the majority ruled that taxpayers cannot challenge the use of money allocated to the executive branch for promotion of religion. Five of the current justices (Scalia, Alito, Kennedy, Roberts and Thomas), Gey argued, generally favor allowing the government to facilitate religion as long as it does not favor a certain sect.
Gey then outlined the differences between the “old” and “new” views of the establishment clause. He stated that there are five important differences. The first is that, under the old view, the government basically ignored religion. Under the new, the Court says that politics are infused with and defined by religion, that the
The third difference is that under the old paradigm, religious beliefs were irrelevant to whether one could obtain citizenship. Under the new paradigm, de facto religious tests are allowed for some aspects of democratic participation. To illustrate, Gey cited the impossibility of being elected to public office in certain areas as an avowed atheist. The fourth difference he cited is that under the old paradigm, the Court enforced one national theory of religious freedom, while the new paradigm has the Court stepping aside and allowing religious battles to be fought on the local level. The fifth and final significant difference between the old and new paradigms, Gey posited, was that under the old system, the government was agnostic and neutral. Now, the government advocates for certain “truths.”
However, Gey offered some hope for those who oppose the new direction of establishment clause doctrine. There are three reasons the new paradigm won’t stand, he said. The first is that the position by the majority is not historical. The writers of the Constitution supported a secular government. Secondly, the
Professor Marci Hamilton spoke second. She clarified that the historic purpose of the establishment clause was to protect religion and government from one another, as one often has a tendency to overlap and overpower the other. But the separation of church and state is naturally fuzzy because there is no way the two can be totally separated.
Despite the historical inaccuracy of the “Christian nation founded on Christian values” idea, the effects of the eroding barrier between church and state will be felt for at least the next 20 years,
However, if the country becomes opposed to the direction the court is taking the separation of church and state, there will be a response from the people through the legislature, she predicted.
ACS sincerely thanks both professors for their time and presentations.