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«Fordham Urban Law Journal Volume 24, Issue 3 1996 Article 5 Linking Genes with Behavior: The Social and Legal Implications of Using Genetic Evidence ...»

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The harassment and threats to which Establishment Clause advocates are subject are underscored by an order that the ACLU recently won from a federal judge in Idaho. In that case, challenging prayers that are organized and sponsored by a public school, our clients were-as is common in such cases-proceeding under pseudonyms. The school's lawyers had sought to have our clients' identities revealed to them in a confidential proceeding in the judge's chambers. However, our attorneys presented evidence and arguments demonstrating the serious risks of harassment and violence directed against our clients, should their identities be revealed. The judge was persuaded of these dangers and therefore

163. In June, 1997, the ACLU presented Lisa Herdahl with its 1997 Roger Baldwin Medal of Liberty. Named in honor of the ACLU's principal organizer, this Medal is the highest honor that the ACLU bestows. It is presented biennially to recognize either distinguished lifetime contributions, or an exceptional particular contribution, to civil liberties in the United States. Lisa was nominated for this award by a distinguished Screening Committee: Drew Days, Professor at Yale Law School and former Solicitor General of the United States; Dr. Joycelyn Elders, Professor at the University of Arkansas Medical School and former Surgeon General of the United States;

Katha Pollitt, columnist and editor of the Nation Magazine; Oliver Thomas, Baptist minister and First Amendment lawyer, Special Counsel to the National Council of Churches and the Freedom Forum First Amendment Center; Arlinda Locker, a leading attorney specializing in Native American rights; and Diana Daniels, Vice President and General Counsel of The Washington Post.

164. Lee v. Weisman, 505 U.S. 577, 607 n.10 (1992) (Blackmun, J., concurring).

165. Id. (Blackmun, J., concurring) (quoting Michele A. Parish, GraduationPrayer Violates the Bill of Rights, UTAH B.J. June-July 1991, at 19).

RELIGION AND POLITICS

1997] denied the request to reveal our clients' identities even in the limited fashion sought by the school's lawyers. 166 D. Problems with Justice Scalia's Narrow Construction of the Establishment Clause During his lecture at JTS last month, Justice Scalia stressed his extremely narrow view of the Establishment Clause, maintaining that it does not prohibit the government from sponsoring religious exercises, but that it only prohibits the government from sponsoring specifically sectarian exercises. 167 This circumscribed interpretation of the Establishment Clause is often denominated (no pun intended) the "nonpreferentialist" view,' 6s since it posits that government may support religion in general, but just may not act in a way that prefers any particular religion (or, concomitantly, that discriminates against any particular religion).

Even applying Justice Scalia's own preferred approach to constitutional interpretation, historic analysis, this nonpreferentialist theory is not justified. In his dissenting opinion in Lee v. Weisman, Justice Scalia set forth his nonpreferentialist interpretation of the Establishment Clause, asserting that this interpretation was supported by the legislative history underlying the Clause. 169 But Justice Souter's concurring opinion met and bested Justice Scalia on his own ground of historical interpretation. Citing historical research by University of Texas Law Professor Douglas Laycock,' Justice Souter reviewed the substantial evidence that the framers did consider language that would have barred only government aid

to specific sects, but then deliberately rejected these narrower formulations, in favor of the open-ended, broad prohibition in the Establishment Clause.' 7 1 As Justice Souter concluded:

166. Jane Doe v. Madison School Dist. No. 321, Civil Case # 90-0518-E-EJL (reversing prior ruling requiring identity revelation because he saw no compelling interest for it). As this article went to press, the ACLU brought a lawsuit against school officials in Pike County, Alabama on behalf of four Jewish students who were persecuted for their religious beliefs and for their resistance to the school's persistent promotion of Christianity. See Sue Anne Pressley, Tough Lessons in an Alabama Town;

Jewish Children Persecutedat School, Parents Chargein Lawsuit, WASH. POST, Sept. 2, 1997, at A3.

167. See Lee, 505 U.S. at 641 (Scalia, J., dissenting).

168. See Douglas Laycock, The Origins of the Religion Clauses of the Constitution:

"Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 WM. & MARY L. REv. 875 (1986).

169. Lee, 505 U.S. at 641.

170. Laycock, supra note 168, at 884-85.

171. Lee, 505 U.S. at 609-16 (Souter, J., concurring).

462 FORDHAM URBAN LAW JOURNAL [Vol. XXIV What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of "a religion," "a national religion," "one religious sect," or specific "articles of faith." The Framers repeatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for "religion" in general.

Implicit in their choice is the distinction between preferential and nonpreferential establishments, which the weight of evidence suggests the Framers appreciated.... Of particular note, the Framers were vividly familiar with efforts in the colonies and, later, the States to impose general, nondenominational assessments and other incidents of ostensibly ecumenical estabThe Virginia Statute for Religious Freedom, lishments...





written by Jefferson and sponsored by Madison, captured the separationist response to such measures. Condemning all establishments, however nonpreferentialist, the Statute broadly guaranteed that "no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever," including his own....

What we thus know of the Framers' experience underscores the observation of one prominent commentator, that confining the Establishment Clause to a prohibition on preferential aid "requires a premise that the Framers were extraordinarily bad drafters-that they believed one thing but adopted language that said something substantially different, and that they did so after repeatedly attending to the choice of language.". We..

must presume, since there is no conclusive evidence to the contrary, that the Framers embraced the significance of their textual judgment. 7 2 Justice Souter's opinion in Lee v. Weisman also pointed to another problem with the nonpreferentialist version of the Establishment Clause, which was vividly demonstrated by Justice Scalia's answer to a question after his lecture at the JTS last month. As

Justice Souter observed:

[N]onpreferentialism requires some distinction between "sectarian" religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster.

[B]y requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible.'"

172. Id. at 614-16 (quoting Laycock, supra note 168, at 882-83).

173. Id. at 616-17.

RELIGION AND POLITICS

1997] Indeed, after his JTS lecture, Justice Scalia raised some questions about his competence to make such a determination. A woman in the audience asked Justice Scalia why the rabbi's prayer in Lee v.

Weisman, which closely paraphrased a traditional Jewish prayer of thanksgiving-the "Shehecheyanu"-did not violate even Justice Scalia's limited view of the Establishment Clause. I wrote down his exact answer. He said that, despite its traditional Jewish nature, the prayer at issue in Weisman was nonetheless not sufficiently "sectarian" to trigger his limited version of the Establishment Clause because it was "not uncongenial to any other religion." I fully share the questioner's flabbergasted response, which she expressed in these understated terms: "That's a very interesting view of sectarianism." One has to wonder, if Justice Scalia does not deem this government-sponsored prayer sufficiently sectarian to violate his nonpreferentialist conception of the Establishment Clause, what government-sponsored prayer, if any, would satisfy that limited conception.

IV. Free Exercise Clause Last month, in introducing Justice Scalia, Rabbi Vizotsky announced the title and subject of Justice Scalia's lecture as concerning "the religion clauses" of the First Amendment. However, Justice Scalia's lecture focused on only one of those two clauses, the Establishment Clause. He studiously omitted any sustained discussion of its companion guarantee of religious liberty, the Free Exercise Clause. Rather, he dismissively indicated that it should not be given much weight or scope. This omission is completely consistent with Justice Scalia's key role in decimating the Free Exercise Clause through his majority opinion in Employment Division, Department of Human Resources v. Smith, in 1990.174 The Smith decision has been described by experts as "the Dred Scott of First Amendment law,' 175 making "a dead letter"'176 of the Free Exercise Clause.

The scope of the damage that the Smith decision inflicted on religious freedom rights under the Free Exercise Clause is most directly expressed in the title of the statute that Congress subsequently passed as a "legislative fix" for that damage, the

174. 494 U.S. 872, 874 (1990).

175. See Oliver Thomas, Religious Freedom Finally has a Friend in the White House, DALLAS MORNING NEws, Nov. 5, 1995, at 5J.

176. Oliver Thomas and David Saperstein, Religious Freedoms: Lost and in Need of Restoration?, THE RECORDER, Aug. 13, 1993, at 8.

FORDHAM URBAN LAW JOURNAL [Vol. XXIV "Religious Freedom Restoration Act."'1 77 Of course, no legislation can ever completely "fix" a Supreme Court decision that cuts back on constitutional protections, and no legislation can ever fully "restore" constitutional rights that have been judicially diminished.

Because legislation can always be repealed through ordinary legislative processes, it does not afford the security and stability for rights that the Constitution does. In contrast, at least in theory, constitutional rights should be 'subject to limitation only through the arduous super-majoritarian process of constitutional amendment. 178 Of course, as the Smith case itself illustrates, the Court can in effect truncate constitutional rights through its (mis)interpretation of them.

In June 1997, with Justice Scalia's support, the majority of the Supreme Court compounded the damage that had been done to free exercise rights in Smith, by holding that the Religious Freedom Restoration Act was itself unconstitutional.' 79 As Justice O'Connor noted in her dissent, by abridging constitutional rights, decisions such as Smith are particularly devastating, since "-as this case so plainly illustrates-'correction through legislative action is practically impossible."" 18 Accordingly, Justice O'Connor again sharply criticized Smith-as she had done in her separate opinion in the Smith case itself' 8 '-and urged the Court to re-examine it, explaining: "[I]n light of both our precedent and our Nation's tradition of religious liberty, Smith is demonstrably wrong."' 2 Justices Souter and Breyer joined Justice O'Connor's call for a re-examination of Smith. 183 For example, Justice Souter expressed "serious doubts about the precedential value of the Smith rule and its entitlement to adherence."' 8 In his Smith opinion, Jusfice Scalia ruled that as long as the government does not overtly or intentionally discriminate against adherents of particular religious beliefs when it enacts a generally applicable law, the Free Exercise Clause does not insulate such adherents from complying with the law, even at the cost of violating

177. 42 U.S.C.A. § 2000bb to 2000bb-4 (1993).

178. U.S. CONsT. art. V.

179. City of Boerne v. Flores, 117 S. Ct. 2157 (1997) (holding that Congress had exceeded the scope of its enforcement power under section 5 of the Fourteenth Amendment).

180. Boerne, 117 S. Ct. at 2177 (quoting Seminole Tribe of Fla. v. Florida, 116 S. Ct.

1114 (1996) (slip op., at 18)).

181. Smith, 494 U.S. at 891.

182. Boerne, 117 S. Ct. at 2177.

183. Id.

184. Id. at 2186.

RELIGION AND POLITICS

1997] sincere religious beliefs. 18 In so ruling, the Court abandoned the accepted understanding of the Free Exercise Clause as providing some absolute protection against government measures that substantially burden sincere religious belief.18 Justice Scalia's view of the religious liberty guaranteed by the Free Exercise Clause is as narrow as his view of the religious liberty guaranteed by the Establishment Clause. According to his Smith opinion, the Free Exercise Clause amounts merely to a shadow of the Equal Protection Clause, guaranteeing only formally equal treatment of all religious beliefs; so long as a governmental rule on its face applies equally to all religious beliefs and was not intentionally designed to have an adverse impact on any particular faith, then it is Constitutionally irrelevant that the rule in fact has such an adverse impact. The religious believers whose free exercise rights are in fact-albeit inadvertently-burdened unequally by a facially neutral rule are deprived of any constitutional recourse.

This sterile view of the Free Exercise Clause severely cripples its ability to protect members of minority religious groups. In her concurring opinion, which excoriated the abrogation of longstanding Free Exercise Clause standards in Justice Scalia's majority

opinion, Justice O'Connor noted:

[F]ew States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such.... If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice. 187

185. Smith, 494 U.S. at 876-80. This paragraph, as well as the remainder of this section, is based upon Nadine Strossen, Michigan Departmentof State Police v. Sitz: A Roadblock to Meaningful JudicialEnforcement of ConstitutionalRights, 42 HASTINGS L.J. 285, 382-88 (1991).



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