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Rebecca, Liz, and Alison discuss the state of state/church separation with Professor Caroline Corbin, constitutional law professor at the University of Miami. They review the history of Establishment Clause jurisprudence, remind listeners about what the Supreme Court did to the religion clauses in 2022, and discuss where we stand now in regards to rights under the First Amendment. TLDR: If you’re a Christian, rest assured it’s a “Heads I Win, Tails You Lose” court.
Background
The Remains of the Establishment Clause (Lupu & Tuttle, updated 2023)
James Madison’s Memorial and Remonstrance against Religious Assessments
Previous We Dissent episodes on Carson v. Makin
Cases
Rebecca Markert:
Welcome to We Dissent the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I’m Rebecca Markert with the Freedom From Religion Foundation.
Alison Gill:
And I’m Alison Gill with American Atheists.
Liz Cavell:
And I’m Liz Cavell, also with the Freedom From Religion Foundation.
Rebecca Markert:
In today’s episode, we are going to do a state of state church separation in the United States. Regular listeners know that we’ve been covering the most recent cases at the Supreme Court, which have bulldozed the wall of separation, but the court has actually been chipping away at the wall for a number of years, and today we are excited to welcome another guest, professor Caroline Corbin, to discuss how we got here and what comes next.
With regard to the Establishment Clause, we’re also very excited because she is an academic. Most of our guests have been advocates for state church separation or other social justice issues. So we are really excited to have a more academic conversation with Professor Corbin today.
I will give you a brief introduction to Professor Corbin. She is a professor of law at the University of Miami. She teaches all the con law courses Con Law One, Con Law Two, the First Amendment to the Religion Clauses, the Free Speech Clause, Feminism and the First Amendment, and Advanced Topics in Reproductive Rights.
Her scholarship focuses on the First Amendment’s speech and religion clauses, particularly their intersection with equality issues. She’s litigated civil rights cases as a pro bono fellow at Sullivan and Cromwell and as an attorney at the ACLU Reproductive Freedom Project. She also clerked for Judge Blaine Michael of the United State Court of Appeals for the Fourth Circuit. She graduated with a BA from Harvard University and earned her law degree at Columbia Law School. So welcome Professor Corbin.
Professor Caroline Corbin:
Thank you. I’m very excited to be here.
Rebecca Markert:
I was really excited for you to be on our show because we’ve been working together for a number of years and I don’t know if you recall, but the first time I met you was actually at the Secular Coalition for America’s Lobby Day. I think it was like 10 years ago. It was a long time ago, but we had exchanged business cards and after that you were really good about sending us law review articles about the issues that we were working on. That was so helpful.
We ended up sending them to all of our attorneys to help keep them abreast of the scholarship in that area. But I was also really excited about it because first of all, it was scholarship from a secular viewpoint.
A lot of times when you go onto law review journals, you get a lot of articles about religious liberty issues from religious schools. So I was excited, one, because you were writing from a secular perspective, but you’re a woman constitutional law professor and that is also just incredible and rare. And so I was very excited to make your acquaintance and keep this relationship going for a long time.
Professor Caroline Corbin:
It’s funny because I know a lot of people come to the Religion clauses because of their faith. I actually ended up here because of my interest in reproductive rights. I actually started my career, as you mentioned, at the ACLU Reproductive Freedom Project. And you can’t work on reproductive rights in this country without crashing into religion. And so that’s the path, one of the paths that led me to working on religion clauses from a more secular point of view.
Alison Gill:
I think it’s interesting because I think that’s true for more and more areas is certainly true for LGBTQ issues. It’s one of the reasons I’m so interested in this area, but I mean so many others. End of life, even employment issues these days impact religion so much or impacted by religion law so much.
Rebecca Markert:
Let’s get into our topic for today. The first question that we have for you Professor Corbin, is about the importance and the significance of the Establishment Clause. We have been working in this space for a very long time and we understand why it’s so important for Americans to understand and to work hard to protect. But maybe you can tell us a little bit about the history of the Establishment Clause and why all Americans should care about state church separation.
Professor Caroline Corbin:
Absolutely. From my point of view, I think the Establishment Clause is crucial both for the religious liberty of religious minorities and for the equality of religious minorities. So it’s plays a really important role in both liberty and equality, starting with liberty, and this is the liberty of people who belong to minority faiths.
So for example, if you had a teacher who led the class in Christian prayers at the beginning of each school day, that might coerce someone to participate in prayers of someone else’s faith, contrary to their own religious beliefs and practices. And that is why the Establishment Clause bars it, it’s one key purpose of the Establishment Clause is actually to promote religion, but to promote the religious liberty, not of the majority, but of the minority. So that’s one important role it plays.
The other is just protecting equality based on religious belief. And by preventing the government from favoring one religion over other religions or even some religion over other religion, it prevents the government from creating a religious hierarchy where people who do not belong to the religious majority, and I include both people who belong to minority religions and those who have no religion at all, it prevents those people from becoming second class citizens. So the Establishment Clause plays a crucial role in protecting both religious liberty and equality of the country. And so I think it is a vastly underappreciated clause in the US Constitution.
Liz Cavell:
Obviously the courts, the Supreme Court at least has declared that it does not value the Establishment Clause as you just described it, right, like those values of neutrality and true religious liberty with a focus on protecting the minority from majoritarian power. So given that a lot of the project of our organizations right now is trying to really convince the American public that these values are still essential to American democracy.
I think the Supreme Court has gotten away with a lot in this area because people don’t see the Establishment Clause as something important to democracy, to their own power, to equality in the way that you’re describing it. How do you communicate that? Or have you found a way to kind of communicate the urgency of the First Amendment and the Establishment Clause to regular people?
Professor Caroline Corbin:
I don’t know if I’ve been successful. I mean, I think there are two, maybe two slightly different audiences for those who really value religious liberty and find it to be essential to their own lives. It’s really worth emphasizing that part of the purpose of the Establishment Clause is to promote religious liberty. I think that’s an aspect that has too often gotten lost. And I think it’s really important and I think emphasizing that it’s both clauses that protect religious liberty and you need both of them. It’s not gonna work if you only protect free exercise Clause rights and obviously, especially if you only protect the free exercise Clause rights of conservative Christians.
But to really say that the Establishment Clause and the free exercise Clause work together to protect everybody’s religious liberty. So I think that’s one to one sort of approach to communication that may often be overlooked when people talk about the Establishment Clause, is how important it is actually to religious liberty.
So that’s, that’s one part. And then as for equality, I mean, who doesn’t, who doesn’t think equality is important? Well, again, I suppose there are some who don’t. I think one of the greatest disservices the Supreme Court has done to the Establishment Clause is to reduce the harm of the violations of the Establishment Clause to nothing more than offense, right? So the court is always saying, how, I don’t even know why this person has standing.
Like I don’t even know why they have the right to bring a case. They’re just offended. Right? And I think you need to respond to that continued claim that this is nothing but people being offended. It’s like, it’s not about people being offended, it’s about people not being treated as an equal in our community because of their religious beliefs.
So how do you argue that persuasively, I don’t know, people understand racial hierarchies, which is why I use the term religious hierarchy, because people understand that when you do something that impinges on the dignity of a person of color, that that is more than just offense. It conveys a message that they’re not equal, they’re not as worthy, they’re not a full member of the community. And so I think another narrative to really emphasize is this is so much about making sure that everybody is an equal citizen regardless of what they believe in vis-a-vis religion.
Alison Gill:
Can I just add I think that it’s hard to get people to care a lot about abstract constitutional principles. I think people are gonna care about the application. And so it’s our job, I think, to take when we see these outrageous cases, which offend us and to hold them up and show people the religious aspect and why that’s working. And you know, and also to counteract Christian nationalism, which basically says religious hierarchies are okay as long as Christians are on top, because that’s the goal of the United States. So we have to counteract that narrative because if people are okay with religious hierarchies just because they’re winning, that’s not acceptable. Right.
Liz Cavell:
That’s so true. Alison and I, I was laughing a little bit Professor Corbin because when we were emailing back and forth about the outline, you sent a message cuz it’s not in the outline. Do we wanna talk about Christian nationalism at all? And I was literally laughing in my office because I’m like, how do we talk about what’s happened to the Establishment Clause in our courts without talking about Christian nationalism? Right?
And so Alison obviously that’s so right. There’s a whole nother project going on in the courts. It’s not just reasoned academic debates about applying constitutional law principles. It’s no, it’s a project to put into power Christian supremacy through law. That’s a huge part of how we try to tackle communicating about these issues is like really ringing the alarm about how much of what the court is doing is really about making second class citizens out of everybody who is not a Christian.
Rebecca Markert:
So I wanna just jump in and ask about atheism because we are talking a lot about how these religion clauses protect religious liberty of everyone, and you are free to believe what you want, but let’s bring it back to the freedom to not believe and where does that fit in with the religion clauses?
Because I think when we’re talking about offense and you’re offended by something, I feel like the atheists always get sort of like the short shrift here because you know, for a lot of Americans who are believers, they really do think like, you shouldn’t be offended because if you don’t believe it, it shouldn’t matter to you. Just look the other way. Can you talk a little bit about what the religion clauses say about somebody who doesn’t believe?
Professor Caroline Corbin:
Yeah, so again, I think the example that I started with about the teacher who starts the day with a Christian prayer and students are inevitably gonna feel pressure to participate even if it’s against their own religious convictions. And that religious conviction can be, well, I’m Jewish and I don’t believe in Jesus Christ and he’s not my Lord and Savior, or I’m an atheist and I don’t believe in any of this. And it is equally intruding on my own moral conscience to have to recite this.
So again, the protection is for everybody who’s not a member of the majority faith. And that goes equally for all the discussions about how and makes them second class citizens. So the protection, it reaches everyone who’s not a member of the favored religion to have a Clause in the Constitution say the government cannot favor one religion over others. The government cannot force you to participate in a religious exercise, not your own. The government will not be funding the practice of one religion. All these things are the types of things the Establishment Clause has been understood to prohibit.
Rebecca Markert:
And what has the Supreme Court said about non-believers?
Professor Caroline Corbin:
Depends which one you’re talking about. <Laugh>.
Rebecca Markert:
<Laugh>. Well they have said the Religion Clauses encompass both the right to believe and not to believe.
Professor Caroline Corbin:
Absolutely. It was supposed to protect, it was supposed to make whatever you believe, not relevant. As far as the government was concerned. And whether you believed in, you know, multiple deities or you believed in nothing at all, the Religion Clause, at least the Establishment Clause was meant to reach you. The free exercise Clause, not so much. So the free exercise Clause is really about those who have some kind of faith. Although again, where the line is is not always clear, right?
Humanism might be in, but pure atheism may not be in terms of free exercise, but for Establishment it’s to protect people based on what they believe regardless of what that belief is. And so it definitely encompasses atheists and the Supreme Court has repeatedly said that, this court has not said it otherwise, it just doesn’t care anymore about religious minorities or at least it seems to have little interest in protecting people based on their religious belief in the same way that previous Supreme Courts have.
Liz Cavell:
It’s really the saddest thing about what has happened to the Establishment Clause. It’s been slowly happening as the courts gotten more conservative over the past couple of decades, but obviously has been majorly accelerated by the current court in its super majority. But the saddest thing is that the cases that we all have kind of built a lot of our work on, they go back 40, 50, 60 years, right? They’re these big broad Supreme court cases in early cases interpreting the Establishment Clause as it was applied to state and local governments and school districts.
And the language is that strong neutrality language of the Establishment Clause prohibits the government playing favorites amongst religion against religion or religion in general against non-religion, right? And it’s just so sad to see how much this court has just completely eroded that principle to meaninglessness, because that’s kind of the best part I think about the Establishment Clause is that it does that leveling of a playing field for all of us so that nobody can be second class citizens based on your religion.
Alison Gill:
Well, well building on that then I thought it might be a sense to talk about some of the general principles that have been in place to understand the way the Establishment Clause is traditionally functioned and then what the court has done to some sort of subvert it and what the new rules are, such as they are rules are in quotes. So for example, I was reading this great paper recently by professor Lupu and Tuttle called the Remains of the Establishment Clause.
Where he sort of lays out is that the idea of religion is distinct religion is set aside as a special by the, by the First Amendment. And that the Establishment Clause and the free exercise Clause work together to establish that religion has a special place in our law and it’s treated differently than other issues.
And so and the way the Establishment Clause and the franchise Clause function around that, that religion can be treated differently. And so that that has all sorts of applications and to the counterpoint with the modern court has done is to say, well, religion must be treated almost like in the most beneficial way possible, either equally to secular issues or it must be given special privileges when it requests like, but it seems to be whatever most favors religion is how it should be treated. But it’s no longer distinct. It’s no longer like you can segregate it out and say religion is treated differently.
Professor Caroline Corbin:
I would have a once a friendly amendment to that, which is religion is special when it comes to free exercise and granting religion special accommodations. But religion is the same when it comes to limits on religion and the Establishment Clause and funding. So basically religion gets to have its cake and eat it too, right? So religion is distinct and special when it comes to giving it special accommodations and sort of providing it with exceptions from general laws that nobody else gets under free exercise. But it’s absolutely the same when it comes to funding.
For example, you now have to fund religion in exactly the same way you would fund a religion counterpart. So it is distinct or the same depending as what Alison said, depending on what best favors religion. So it’s not that they’ve completely eliminated the fact that it’s distinct, it’s just that they choose when it’s distinct and the choice to be distinct is one that always favors religion and the choice to say it’s not distinct always favors religion. So it’s really, it’s a regime where religion wins.
Alison Gill:
That seems to be the court’s motto these days, doesn’t it?
Professor Caroline Corbin:
Yes. Well, you know, again, most of the recent cases we’ve seen go before the court have been cases brought by conservative Christians, whether progressive attempts to gain special privileges and accommodation and exemptions from law, whether those progressive attempts at free exercise claims will be equally as successful is another story. So for example, you have all these Jewish plaintiffs bringing free exercise claims, challenging abortion laws we’ll see if they also can take advantage of the really expansive protections that this Supreme Court has created. I mean, under the existing doctrine they should win. But again, we’ll see.
Alison Gill:
So when looking at general principles under the Establishment Clause for decades, I mean the tests revolved around things like, you know, what is the purpose of the government action? What is the effect? Is there too much entanglement between government and religion? And separately, you know, does it appear to the casual observer that there’s an endorsement by the government of religion? Those are some of the tests that have traditionally guided our litigation in this area for 50 years or more. Where are we today? Is any of that still true?
Professor Caroline Corbin:
No. So what Alison is talking about doctrinally, there were certain tests that the Supreme Court used particularly in cases involving things like religious displays like Ten Commandments or Latin crosses or in religious exercises like the government leading prayers. And so there was, there were certain rules, there were certain tests the court had created in order to decide whether they violated the Establishment Clause. So for example, one of the queries was does this government action, does it have a primarily secular purpose or is the primary purpose religious?
Because if the primary purpose is religious or to promote religion, that would violate the Establishment Clause. Or the question would be, well would people who saw this religious display, would they think the government was endorsing religion or would it sort of basically sort of inevitably conclude yeah, the government is really preferring one religion over another because again, the government was not supposed to favor one religion over others.
As we talked about at the very beginning, that kind of neutrality vis-a-vis religions was essential to religious liberty and equality based on religion. And so that was one of the limits that the court placed on what the government could do vis-a-vis religion. Those tests are gone and instead what have replaced them thanks to the Roberts Court is a presumption that longstanding religious practices like prayers before opening sessions of the government longstanding religious practices or longstanding religious displays.
So like if there’s been a Ten Commandments in front of the courthouse for a hundred years, they’re gonna assume those are presumptively constitutional. That’s the new rule. How they justify the new rule is a little trickier to just to to explain, but the new sort of just the rule in the law is if it’s been around long enough, they’re gonna presume it is constitutional unless shown otherwise.
And while that’s written a way that does not seem to favor one particular religion, in reality of course it’s going to favor Christianity because what other group had the power to have prayers beforehand or put up a monument of its religion, they’ve basically just created a presumption that longstanding Christian monuments and practices are perfectly fine because the touchstone for Establishment Clause is no longer whether there’s a secular purpose or no longer whether it has the effect of creating second class citizens. The touchstone is now history, history and tradition.
If there’s enough of a history and enough of a tradition, it’s just gonna be peachy keen. As far as this court is concerned, they have shifted the doctrine in a way that almost guarantees that the government can favor Christianity
Alison Gill:
And even outside of the displays and religious practices matters. They’re still using history to tradition test. And I’m sure we’re gonna get into more detail there, but there was a Fourth Circuit panel that basically said how the Establishment Clause was supposed to work in their vision based on the Supreme Court’s precedence. The panel added in this is the Firewalker-Fields v. Lee case, the panel added that the plaintiff has the "burden of proving a set of facts that would have historically been understood as an Establishment of religion."
So basically something is only a violative of the Establishment Clause if the plaintiff can prove it is a Establishment of Religion, which is good luck to do that.
Liz Cavell:
Caroline, you’re an academic and a lawyer, but how problematic it is to say, okay, history is the touchstone in these cases and so lawyers and judges put on your historian hats and make your best case. And we see how that shakes out, right? This is not like some true searching examination of what the historical record supports. This is what we call law office history. It’s just who can do a convincing argument about how history supports their favored result?
And the judges do this all the time in these cases, how does the Roberts Court purport to divine what history supports as judges? And it’s not like a layperson might think, oh well you just get historians to like do honest assessments of the historical record. And we do have experts that get hired in in some of these cases and probably we’ll see that more. But if you read these opinions and the history that is cited, what is a good way that this could ever work, even if it were a valid framework for analyzing what the Establishment Clause means?
Rebecca Markert:
And I’ll just tack on there too, what is longstanding? I mean, how long does it have to be historic before it’s presumptively constitutional? Like 20 years? 30 years? Are we looking at a hundred years?
Liz Cavell:
Five years?
Rebecca Markert:
Right?
Liz Cavell:
Like it’s all relative.
Professor Caroline Corbin:
It’s a nightmare test. It’s a nightmare test for so many different reasons. One of which you already mentioned is that lawyers are not trained historians, right? So the very first problem is that courts do not have the institutional competence to conduct this kind of inquiry. And you can’t have every case turn into a deep dive into history from 200 years ago, a hundred years ago. All right, so problem number one.
Problem number two is the assumption that this history can be uncovered. There are many reasons why it may not be uncovered, one of which is there was never a consensus on the question because just as people today have very different viewpoints on what the Establishment Clause does or does not allow, so did people 50 years ago and a hundred years ago. And at the founding there is not a single understanding of the Establishment Clause.
The third problem trying to look to history and why you may not find an answer is because there is no answer. Because history was not faced with this particular question. We are a very different country today than we were 50 years ago, and there have been incredible changes in our society. And so the very specific question before the court might not have been a specific question that existed in history. And so, you know, do you allow funding of charter schools like there were no charter schools, like how could we possibly figure that out?
And then, you know, never mind the fact that judges are notorious for cherry picking history or even in good faith. I mean, how many times have we seen the courts take this understanding of the Second Amendment judges? The dissent and the majority both looked to history, both wrote dozens and dozens and dozens of pages on what the history should lead them to conclude and came to completely different answers.
And this doesn’t even get into the question of how broadly do you frame the inquiry? So I’m sorry this is my reproductive rights background coming into play, but let me do an analogy with Dobbs where again, that also they looked at history and the question they asked was, is the right to abortion deeply rooted in our nation’s history and tradition?
And even setting aside their completely dishonest excavation of the history on abortion, that was by no means the only way to phrase the inquiry they could have instead asked is the right to make medical decisions about your own body deeply rooted in our nation’s history and tradition. So even assuming there is some answer in the midst of history that we can uncover, the answer might vary depending on how we frame the question.
And I haven’t even gotten into the normative problems with relying on history. Like why in the world would you rely on history to determine our rights today? We know that history is filled with sexism and racism and homophobia and antisemitism and anti Catholicism, history should not be what determines our rights today. So that was a bit of a rant. I could go on longer, but I think I’ve given you, I hope at least a taste of some of the problems of trying to rely on history to determine constitutional rights.
Rebecca Markert:
What do you think the reason is for this reliance on history?
Professor Caroline Corbin:
I think there are at least two. One, because they can get whatever answer they want because you can find in history evidence to support whatever conclusion you want. Mis have the Establishment Clause because of this and that so many different disagreements. And second, because history is sort of conservative and Christian interpret the Establishment Clause vis-a-vis history, you’re gonna have a lot of decisions that favor conservative values and conservative Christianity. And for this court that is just fine.
Liz Cavell:
Yeah, when you said like the normative bias to history, well it’s like that, that’s so true because it really is just the whole point of the historical framework paradigm is it’s the Christian nationalism project, right? It’s the project of making sure that enshrined in our Establishment Clause jurisprudence, if you look to the founding Christian supremacy was normal and therefore it’s a feedback loop. It’s a circular argument. Therefore that’s what the Establishment Clause was meant to be tolerant of. Therefore it’s a Christian nation.
Alison Gill:
I think the historical approach also allows the court to ignore the consequences of imposing this paradigm. They don’t get to have to grapple with the consequences of imposing this historical paradigms, whether it be repro, whether it be separation of church and state onto the modern pluralistic society and also allows them to ignore precedent, right? They don’t have to grapple with why Engel v. Vitale was decided a certain way, right? If they can just say, well historically this is not how it was done. Or something along those lines. So you can see they sort of get around the precedent instead of grappling with it, they ignore it.
Professor Caroline Corbin:
Yeah, I think that’s a really good point, Alison. I actually also think it allows them to get to decisions without offering a principled explanation.
Alison Gill:
Absolutely.
Professor Caroline Corbin:
So for example, in town of Greece versus Galloway, which is a case which involved a town that had prayers before its town meetings and just about all the prayers turned out to be Christian. And the Supreme Court, and again that would seem a pretty straightforward violation of the longstanding Establishment Clause prohibition against favoring some religions over others.
But rather than engaging with that principle, what the Supreme Court said was, well, you know, at the very founding of our country, people prayed during legislative sessions and some of those prayers were Christian and therefore if they didn’t think it was unconstitutional, then neither should we without actually explaining why that might have been acceptable. And the reason it might have been acceptable is because at the time the particular prayers to God that they had included everybody, right? Everybody believed in God. And so everybody there was pretty much Christian.
And so the prayer was inclusive at the time. Whereas today the exact same prayer that the founders might have thought was just fine. That exact same prayer would not be inclusive because we are a nation thankfully of dozens and hundreds of different kinds of religion. And it’s impossible to come up with a prayer that’s inclusive, especially because a large chunk of the country is not religious at all.
So rather than engaging with this principle and trying to explain how this principle plays out today in a religious prayer case, they’re just like, oh, they did it then we can do it today. We’re not even gonna think about what the principles of the Establishment Clause might or might not be.
Liz Cavell:
But you hit it right on the head, which is that’s the point. It’s not some accident of the analysis, right? It’s the whole purpose of doing it that way is to achieve exactly that end, which is to say it was very inclusive then and I liked it better then because I’m in that in group. So I’m gonna say that that same behavior in government, even though the effects are completely different now, it’s still okay because you can’t get away from the fact that none of this is happening in good faith on the part of the Roberts Court. It’s all a project to hearken back to what they view as a Christian nationalist past.
Professor Caroline Corbin:
And the one other thing about history, this is what I forgot to mention, is sometimes they rely on it and sometimes they don’t. One thing that is stunning is in their funding cases. You don’t see a lot of discussion of the original understanding or the history of the Establishment Clause because there’s no long discussion of James Madison’s Memorial and Remonstrance, which is the original polemic on why the government should not fund religion and churches.
Like that’s not in their analysis. Again, even though they have this very, very much this turn toward history, they’re not even consistent in whether they rely on it or not. If they did rely on it, the answers would not always be the ones they seem to be coming to with regard to funding and the Establishment Clause.
Rebecca Markert:
And that’s what we’ve talked about a lot on this podcast, is that this court is very outcome determinative. They want a specific outcome and history gets them there. Like you said at the outset, they are able to cherry pick the history they want to get a particular decision. We’ve said time and again, they’re a very activist court and I don’t use that term lightly because I never believed that the Supreme Court was that way until the Roberts Court. So I think that the biggest reason they’re putting this analysis out there is because they want a particular outcome. And that outcome is to privilege Christianity over all other faiths and a particular version of Christianity.
Professor Caroline Corbin:
Absolutely. Right. And we see that again, that sometimes they don’t even use history if the history is a little problematic for their conclusion.
Liz Cavell:
Well, to get into how this court has used the Free Exercise Clause and really elevating that Clause above Establishment Clause concerns instead of analyzing them in conjunction the way that prior courts have, that is where the court has really been able to effectuate this heads we win, tales you lose kind of analysis because like you said, Professor Corbin, how the history doesn’t favor, for example, their outcome in the funding space where they’re trying to access government funding for religious purposes, religious organizations or schools or whatever it may be.
So those cases are very forward on the free exercise argument, right? They’re not trying to dip into the neutrality principles embedded in the Establishment Clause. Basically the argument is our free exercise rights entitle us to this funding on a neutral basis. And the Establishment Clause is no impediment to that because we’ve neutered the Establishment Clause beyond all recognition. And so they’ve just manipulated the whole First Amendment, both Religion Clauses to work towards this outcome.
Professor Caroline Corbin:
The changes in the rules when it comes to funding religion have really given me whiplash. They have so fundamentally shifted from when I first started, which wasn’t even that long ago, right? Once upon a time, boys and girls. Once upon a time, the main Religion Clause questioned when the government was directing funds to religious organizations was whether or not it violated the Establishment Clause.
And so the whole question was always, can the government direct this money to a religious church or school without it violating the Establishment Clause? And there was a whole edifice about when it was okay and when it was not. So if it was used for secular purposes and direct funding, it might be okay. And if it was indirect funding, meaning if you gave a voucher to a parent who then decided to give it to a religious school, that was okay because any religiosity was attributed to the parent and not to the government, right?
And so those were the questions when it came to government funding. But now the question with government funding seems to be a failure to give money to religious school is now considered a free exercise violation. And the court is consistently held that the government’s decision not to include religious organizations in a funding scheme violates the Free Exercise Clause. Its discrimination against religion as though the Establishment Clause did not exist, right?
Again, once upon a time the government was allowed to further Establishment Clause values even if it wasn’t required to, right? Even if the Establishment Clause did not require them not to include religion organizations, they could still do so voluntarily because it was part of our history, actually part of our understanding of having a secular government that we didn’t give money to religious organizations. That’s not alive anymore.
Now it’s labeled discrimination against religion again, as though there were no Establishment Clause. But there is. Not only is there an Establishment Clause, there’s a long and storied history of not giving money to religious schools. And that has just dropped out of the current court’s analyses. I mean, they have actually described Establishment Clause values as policy preferences in their funding decisions. The change is just startling and disappointing.
Alison Gill:
I mean, they’re poised to go even further in that in the next few years, right? I mean the question now is going to be can they impose any restrictions along with that funding on religious organizations? They certainly can for secular organizations, but we’ll see if they can for religious organizations in the long run. We’re already starting to see that. Maybe they can’t, I mean, look at Fulton, right? And look at Carson and Maine. So I guess that’s going to be the next question.
Like w you know, do they get both guaranteed money and also no restrictions tied to the money besides those that they voluntarily agree with? Is that, is that where we are? We just have, well, isn’t that the definition of a theocracy? I don’t know. I mean.
Liz Cavell:
Right? Well, Alison what you’re referencing, the Carson versus Macon case, which we did a full episode on this podcast last year about, and then a follow up episode when the decision came down last summer on the Postscript, on the Carson case, is those same schools, conservative Christian schools that have now been told you have a right to public funding, that’s not enough. They’re back in court because they want that funding free of restrictions such as anti-discrimination and other restrictions that we put on our public money because we used to have a right to make those decisions about how we spend our taxpayer dollars.
Professor Caroline Corbin:
Also, we have an Equal Protection Clause. I think one of the startling developments is the way the court is thinking about discrimination. So anytime religion does not get exactly what it wants, it is suffering from discrimination. At the same time, it seems completely blind to the actual discrimination that is being perpetuated by some of these organizations that are getting funding or they seem really cavalier about what it means to be denied services because you are a same sex couple or to be denied healthcare because you are a woman. They’re very nonchalant about the discrimination that others suffer while they find discrimination against religious groups that are not actually being discriminated against.
Alison Gill:
This story reminds me of this case in the Fifth Circuit, the American Airlines case, which was a vaccination case, I believe it’s American Airlines, might be United Airlines, which was a vaccination case brought under Title VII about an employment issue. And basically instead of applying standard law, the court there, the Fifth Circuit went out of its way to create this special whole new area of how you apply employment law under the Civil Rights Act of 1964.
I mean, it had been applied for a standard way for 50 years and they created this whole new way of applying it with dealing with religion. And I think that finding religious discrimination and finding ways to remedy religious discrimination is how we’re seeing a lot of these conservative courts view the law.
Liz Cavell:
You’re hitting on something Alison that’s I think, really important. It’s this whole expansive religious preference in the law in all of these different cases that sort of feeds into the erosion of Establishment Clause principles, just the expansion of religious exemptions in all these different areas of law. The new sort of preoccupation with hostility towards religion in all of the analysis under both the free exercise and the Establishment Clause.
Professor Caroline Corbin:
I wonder if what’s happening is, I think, I think sort of looking more broadly, I think that a lot of conservative Christians have been privileged in the law, right? They’re very used to having the law reflect their beliefs and their values.
Rebecca Markert:
It’s also just so frustrating to me because they’re losing their privilege. But practically speaking, what have they lost? Like they’re still able to live their lives according to their religious beliefs and carry out those practices. There’s nothing really that’s hurting them. How have their lives changed? Because minority faiths and people of no faith are also reaching an equal status to them.
Professor Caroline Corbin:
Absolutely. Right? The fact that two women could get married does not prevent them from marrying someone of the opposite sex, right? But again, the world is no longer a perfect reflection of their values. And I guess that’s hard. I mean, those of us who are minorities, like we’re used to it, we’re used to navigating a world that is not designed for us, right?
If you’re Jewish, you don’t get roshana off. It’s not a national holiday like Passover, the schools don’t close. Right? Whereas that’s new, it’s new for a lot of Christians to not have everything sort of designed, like everything fall into place perfectly for them. It’s just so new and they’re just not used to it. And just having a little bit of a tantrum.
Alison Gill:
I love that example because of the ridiculous war on Christmas narrative that comes around every year. I mean, it’s a perfect reflection of their grievance, right? Reflected in, in law.
Professor Caroline Corbin:
Right? There’s no, like, it’s a national holiday.
Liz Cavell:
But then it begs the question like, what more do you want? It’s not enough to have the whole society ordered around your particular religious viewpoint. It’s never enough. Like that’s the thing because it’s a backlash from the culture war. It’s not just the loss of legal privilege, like Rebecca’s saying, it’s that the culture has changed and now my views seem gross to a lot of people, and that makes me feel bad.
Professor Caroline Corbin:
They’ve lost their privilege. Like the, society is no longer a perfect reflection of their needs and their values.
Alison Gill:
And they want those people not to exist. I mean, that’s it.
Liz Cavell:
Right. That is it. And so much of this Alison I think you’re hitting on is that so much of the conservative Christian takeover of the courts and their use of the courts is aimed or is a, is a backlash to so much of the, the sex-based cultural changes like the, the changes in the culture around reproductive freedom, changes in the culture, big time around LGBTQ rights and acceptance.
And that’s why you see so much of this, you know, I’m on about this all the time, Alison and Rebecca on this podcast, which is like, this court is so obsessed in their hostility framing with giving permission in their opinions to conservative Christians to hold their bigoted beliefs against gay people. It’s like they have to say every chance they get that good and honorable and decent people have views about gay people on all sides of the issue.
Alison Gill:
We’re gearing up for this year’s Supreme Court session, but the major case last year was of course Kennedy v Bremerton. So that was I think the most significant case when it came to the Establishment Clause in the past decade or more. I think it’d be interesting to hear your perspective on the significant changes it made in the law. Our amicus brief that we submitted was focused on the dangers of treating religious speech differently than other types of speech, right? So giving higher deference to religious speech, considering more free speechy than other types of speech. So I’d love to hear your thoughts on that issue as well and how it could impact the law.
Professor Caroline Corbin:
Okay, so I’ll start by saying that historically the Supreme Court has been especially mindful of the Establishment Clause in the school context because again, one of the general prohibitions of the Establishment Clause is that the government cannot force people to participate in religious exercises. And there are different ways you might coerce someone into participating. One is you punish them if they don’t.
Nother is just you bring to bear a lot of pressure on people. So in the school context, the court recognized that even if a student wouldn’t be suspended from school, if they didn’t participate in the prayer at the beginning of the school day, there’s a lot of social pressure to join in, right? There’s a lot of peer pressure if all the other kids are doing it. There’s also the pressure from your teacher who’s going to be grading you and disciplining you.
And so there was this acknowledgement that children in particular might find themselves doing things that they really didn’t want to do at school. And so even as Establishment Clause protections crumbled in the outside world, they still remained at school. So the question is whether Bremerton changed that. And in that case, you had a coach, a football coach, who wanted to say a prayer immediately after football games in the middle of the public school football field.
And there were allegations that a lot of students felt like they had to join in and that he asked players from other schools to join in. And it was like, it was sort of bringing to bear exactly that kind of pressure that the Supreme Court had recognized in the past was especially problematic under the Establishment Clause. And so again, what you would’ve thought would be a primarily Establishment Clause claim was actually a free exercise claim brought by the coach.
Because the school said to him, listen, if you need to pray after football games, that’s fine, but please don’t do it in the middle of the football field immediately after when the students are there, can you please at least wait until the students leave? Or if you need to do it immediately after, can you do it on the side of the field? Right?
And so he won, he won the Supreme Court, said that his free exercise rights were violated because prayer is obviously crucial and he didn’t get to pray as he needed to. And so the question is there no Establishment Clause in the school anymore because of this decision? Here’s the thing about this decision. The facts that I have explained to you were not the facts as recited by the Supreme Court. The Supreme Court created a very different case, a case not necessarily based on the facts.
What they claimed was that he only wanted to pray privately and that nobody ever joined in. So there was a whole series of events where he prayed. They only took a couple of them. It involved free speech as well. And so, let me just explain in free speech, there is a major difference between, or an Establishment, maybe I should say this, an Establishment Clause, the Establishment Clause limits the government.
It doesn’t limit private speakers. So one of the main questions was when the coach was praying, was he praying as a representative of the school so that his prayers are attributed to the school and trigger the Establishment Clause? Or were they purely private speech, in which case they would be protected by the Free Speech Clause. Now, not as extensively as they might be if you weren’t a public school employee, but it was a sort of different question.
So, one of the preliminary questions, one of the first issues the court had to decide is, how should we think about this coach’s speech? Is this something that’s really attributed to the school, or is this really just a private person trying to have a quiet private prayer? And they said it was the latter, which was not what the facts were, right? Any, right? You know, how like books of fiction, like any resemblance to real characters is purely coincidental?
That is a bit like the facts as recited by the Supreme Court, this is a work of fiction, our description of the actual issue before the court. But if we take them at their wordI don’t know if they’ve completely dismantled the Establishment Clause in the school context because as far as they were concerned, this was not about a teacher praying with the class as part of the school day, at the beginning of the school day. This was just one guy trying to like pray to God after the game, during a private moment. It was purely private. It had nothing to do with the Establishment Clause.
Strictly speaking, they may not have totally destroyed Establishment Clause protections in this school. Of course, the very fact that they manipulated the facts in such a way that they could reach a conclusion that it was okay for the coach to pray is problematic. And certainly lower courts are using the case to allow more things than had previously been allowed. But I’m gonna make a pitch and this may just be a desperate Hail Mary. I wanna hope that this is not the complete end of any Establishment Clause protection in the public schools because of the way the Supreme Court described the case, at least as a matter of doctrine.
Now, in reality, it’s a little different. But they have not come out and said schools may now pray. Schools may now sponsor prayers. Right? The schools may now post Ten Commandments schools may now read passages for the Bible. That is not what this case holds. And so all of that edifice of protection that the line of Supreme Court cases have established is still there. That’s my perhaps wishful thinking on the Establishment Clause in schools
Alison Gill:
I think that lawyers have a tendency to hang on to these shaky reads of distinction, right? That in reality don’t play out that way. Because think about this. If you’re a school district and you have a choice between disciplining a teacher that decides to start every with prayer versus the Establishment Clause rights of your students and you have to go to court based on this situation today, are are more school districts going to try to are it is gonna defer and say, well, this isn’t worth the legal risk to us.
Professor Caroline Corbin:
Yes. I think, again, I was saying so, so I was talking about doctrinally what’s happened and the real world, what happened?
Alison Gill:
Yeah.
Professor Caroline Corbin:
But because the doctrine is intact, it means that when the student sues and it goes before a court, a court can still uphold Establishment Clause protections in schools because the other cases are still good. And so it’s important to remember most cases don’t get to the Supreme Court. Most cases are resolved at the district court and Court of Appeals level.
The doctrine is still there in the school context, in the way it simply is not outside the school context. I absolutely think that both schools and courts will misunderstand the holding and those that are keen to have prayer back in school will distort it to their advantage. But those courts that care about religious liberty of all and equality of all still have a precedent that they can refer to reach what I think are the decisions in line with how we understand the Establishment Clause.
Liz Cavell:
I think it’s significant that the way that the court chose to speak on this issue was through this case that was brought in this posture of a disciplined teacher suing the school in a somewhat an employment dispute. And oh look, we’re just touching on the Establishment Clause issue. Tangentially, it’s ancillary to the dispute, but Lemon was long ago abandoned. We’re just gonna put that in there and introduce this historical practices and understandings is what courts and school districts should be thinking of going forward.
But this case is not about the Establishment Clause, it’s about Coach Kennedy and you know, his employment dispute with the district and how he was treated and what protections his speech deserved. It’s devious, right? Like it’s a way of addressing the issue sideways without saying prayer is okay in public schools. The Establishment Clause means nothing, but it sort of nibbles around the edges of that and signals to the lower courts. When faced with these situations, we are going to prioritize the rights of this actor.
Professor Caroline Corbin:
Yes, clearly the rights of the conservative Christian coach who wanted to pray were more important than the rights of students who might have felt compelled to participate in the prayers less they be penalized for not doing so by a coach who clearly had very strong feelings about Christianity. Their lack of empathy for the religious minorities is in keeping with the complete lack of empathy they displayed in the cases outside the school context. I could just as easily construct an argument that all is lost as well, because there’s certainly plenty in the language to lament.
Alison Gill:
Caroline, you’ve talked a bit about how one of the major components or parts of the Establishment Clause is to prevent coercion. And here the court didn’t, they just sort of ignored the idea that there could have been indirect coercion or the indirect coercion is something that matters, right? They, they did, they discussed it a little bit, but they mostly didn’t grapple with it. And by that I mean, do you wanna add something? Sorry. Yeah.
Professor Caroline Corbin:
They didn’t grapple with it because their fantasy case did not involve any children praying.
Alison Gill:
Exactly.
Professor Caroline Corbin:
So as far as they were concerned, they didn’t have to address the issue because all that was at stake was this poor man who was simply trying to pray after football games by himself.
Alison Gill:
Right? But, that is the difference between sort of the Establishment Clause in a way. And their free exercise Clause is direct versus indirect coercion in some ways, right? If we’re concerned about indirect coercion and we have to care a little bit more about the Establishment Clause, if only if we’re concerned about them strapping students down to chairs and sort of directly forcefully proselytizing them coercively, then you know, the free exercise Clause might cover that. And maybe the Establishment Clause is entirely repetitive and you know what I mean, it’s not needed to provide that protection. So I guess I’m wondering, you know, given, I don’t know if you agree with that framework.
Professor Caroline Corbin:
I dunno, I think in the situation where a teacher said to a student, if you did not join the class in prayer, I’m failing you. I actually think that’s an Establishment Clause claim more than a free exercise claim. I tend to think of a free exercise claim is the teacher won’t let the student practice their faith, whereas the school forcing them to do something against their faith is Establishment.
So that’s, I mean, again, you could always bring multiple claims, like these things involve multiple things, but I, that’s how I pri I primarily think about free exercise as the government is prohibiting you from observing the precepts of your faith. Whereas the Establishment Clause is sort of forcing you to participate in their own religious exercises.
Alison Gill:
There’s also a free speech component there as
Professor Caroline Corbin:
Well. Oh my God, yes. There, I mean there’s all, there’s lots of intersection. I mean the Kennedy case also involved sort of free speech issues about government employee. I mean there was a lot of other stuff going on.
Liz Cavell:
I think you’re right, Alison, they didn’t grapple too much with indirect coercion. And like Professor Corbin said, they kind of pretended that the facts didn’t really warrant a discussion of coercion or indirect or direct. But I do think what is so disheartening is that you can see between the lines there is that the way that they talk about the facts and how they would or would not show indirect coercion just shows.
And I don’t think it’s benign. I mean I think it’s deliberate misunderstanding of the concept if this circular thing of, well, nobody came forward to say anything or absented themselves from anything, so therefore there clearly wasn’t any indirect coercion. It’s like, no, that’s the whole thing of indirect coercion. Everyone participates because they have to, I’m not hopeful that they would give a true hearing to a factual presentation of an indirectly coercive public school case because the way that they sort of write off their need to analyze coercion in this case is sort of just a complete obliviousness to how indirect coercion would present itself in a public school context case.
Professor Caroline Corbin:
I absolutely think they’re moving towards narrowing what counts as coercion. So either they’re gonna limit it to actual legal coercion, but there has to be a threat of punishment and simply eliminate social pressure entirely, or they’re gonna narrow the social pressure as you described, is you have to actually prove that you were pressured into participating, which is an evidentiary showing. They will no longer presume that something is coercive. You will have to prove it and it’s not clear how you would prove it. And so even though it might exist, in theory, it’s not going to exist so much in practice. They haven’t done it yet.
Liz Cavell:
Right? That’s not the law now. But that is such a shameful thing. And if the court does eventually go there, because what we should be so proud of is the early interpretations of the Establishment Clause in the public school context and the ways in which courts were willing to recognize how inherently coercive the public school environment is and how government power is really at its apex in our public schools for all the reasons. Public school is compulsory or school is compulsory students, kids are vulnerable and so impressionable and just anyone who’s been to school understands how socially coercive the environment is and how coercive the relationships are in terms of the power dynamics between students.
Professor Caroline Corbin:
So when I teach the school prayer cases, the first thing I do in class is I ask everybody to stand and to repeat after me. And I have my students say the Regent’s Prayer. And most of them do. And I think having that experience of being coerced into praying even when they may not want to have helps them understand social pressure. And you would, cuz again, so it’s so easy to make the argument that, well, if people know they don’t have to do it, then they’re not gonna do it.
And the point I try to make with that exercise is you’re not in grade school, you’re not high, you’re not in college, you’re in law school, you’re a grownup. Now, not only are you a grownup, but you just read all these Supreme Court decisions saying how coercive these are and that you don’t have to participate. And yet, despite being in grad school as an adult fully informed about the law, you still felt the pressure to participate. I don’t know how to replicate that more widely so that people understood how much pressure there is on people to participate in these things.
Liz Cavell:
I love that.
Professor Caroline Corbin:
But I think your point is like school is so coercive for precisely the reasons you said you gotta be there. There’s a huge power differential between the student and the teacher, nevermind all the other kids, especially if you’re like in the Bible belt.
Rebecca Markert:
I want to recap our discussion here because I think it’s really important for our listeners and everybody to understand what our legal landscape actually looks like now and what the threats and concerns are. So I thought I would go and sort of do a rapid fire with you. Professor Corbin, put you in <laugh> the hot seat.
I will give you these typical area of complaints that our organizations have received. And I want you to answer whether you think these practices are constitutional or not and whether our organizations would be successful in any sort of challenges and lawsuits on these areas. So we’re gonna start first with legislative prayer. This is the issue where city councils, county governments, and even state legislatures and congress pray before their sessions is a practice like that constitutional?
Professor Caroline Corbin:
If in theory it is open to different types of prayer and they’re not singling out a particular religion, they’re not intentionally excluding a particular religion. Absolutely constitutional. We saw in town of Greece versus Galloway that they can be mostly Christian and it’s still okay because the reason they were mostly Christian is most of their volunteers happen to be Christian.
Rebecca Markert:
So when is it unconstitutional?
Professor Caroline Corbin:
It would be unconstitutional if they said "We are having prayers before our town meetings and we are only inviting Christian denominations to come join us."
Alison Gill:
But they can exclude atheists though, right? Because actually there was a case on that a few years ago.
Professor Caroline Corbin:
That is a good question. I would think that would not be okay. But I don’t know if that would, that’s one of the, that’s one of the questions of this scope of production for atheists. I think again, if you are singling out someone because of their religious belief, then I think it’s an Establishment Clause problem. If they were cleverer, what they would say they would do, what town of Greece did is like, we’re opening this to any congregation in the town. That would be, okay.
Rebecca Markert:
So then we’ll move over to displays because traditionally our organizations have done a lot with displays and a lot of our members to our organizations get really upset about these types of displays. So the first one is going to be nativity scenes. Always happen in December. There is a nativity scene depicting the birth of Jesus on a courthouse lawn or in a public park, something like that. Is that constitutional or unconstitutional now?
Professor Caroline Corbin:
Again, it might depend on the context. There is still precedent that a government sponsored nativity scene with only a nativity scene and nothing else might raise Establishment Clause problems on the other hand. So for the lower courts they would be bound by that. On the other hand, you might have a town saying, we’ve been doing this for a hundred years and no one’s ever complained before and it now falls into the category of a long standing practice and therefore is perfectly constitutional. So I could see that going either way depending on who’s making the decision.
Rebecca Markert:
Right, right. And I also think that the decision or the opinion that you’re referencing there, Allegheny also rested heavily on Lemon, which is now discarded. So I wonder if lower courts would feel bound by the Allegheny decision.
Professor Caroline Corbin:
Yeah, that’s true. Right. Although again, the way to respond is it was not a practice at the founding and therefore it is not something that has, it is deeply embedded in our nation’s history and traditions. And to the extent that it has become part of our history and tradition, it has only done so in the case where it was either a public forum open to all kinds of religious displays, or the government made clear that it was celebrating something other than the actual birth of Christ, that it was celebrating the holiday season. So there are certainly ways to respond to it, even if you are constrained by making a history and tradition argument.
Rebecca Markert:
So the next display, crosses <laugh>.
Professor Caroline Corbin:
<Laugh>
Liz Cavell:
Used to be kind of non-controversial to say that a cross on public property represented unconstitutional government religion.
Professor Caroline Corbin:
Okay, so here, if it is new, then I think it might still be unconstitutional because again, this presumption of constitutionality, it has to be a longstanding history and tradition. And I really think they meant like things that have been around for a while that are now part of the culture of the place, nativity scenes, they could kind of make it sort of part of the culture of Christmas, right? So if it’s a new cross, it’s a problem. So the Supreme Court upheld a giant Latin cross in the middle of a highway and said it was fine because the cross represented those who sacrificed for World War I.
So the hook there was they were able to characterize it as something other than the symbol of Jesus Christ. Not persuasively, but they at least had this argument, right? And they constructed this whole history that when people see the cross, they think World War I. Although I do not know any Jewish person who sees the cross and thinks of World War I, setting aside that argument. So again, you know, is it possible to construct that kind of argument around the Latin cross? Maybe. But if it’s just like a town wants to erect a new giant cross, I think they might still have some hurdles even under the Supreme Courts "We love Christian symbols decisions."
Alison Gill:
I mean, Alito also said that going after these crosses is actually might be targeting religious symbols unfairly. And that might be a violation of targeting of religion that’s improper.
Liz Cavell:
There’s that hostility.
Professor Caroline Corbin:
Yeah. Any enforcement of the Establishment Clause has become hostility to religion and a potential free exercise violation. Although it might be hard to argue that I don’t think the government can argue that they have a free exercise. Right. But yes, Alison, there’s definitely the immediate way that the court changes any attempt to enforce Establishment Clause values into persecution of religion. All right, next, hypo
Rebecca Markert:
Ten Commandments. So we have two different displays that we are dealing with here. So one is just Ten Commandment displays on public property, and then the second is Ten Commandment displays usually in the form of posters, but sometimes also monuments on public school property.
Professor Caroline Corbin:
Okay. So I think the Ten Commandments, I think the court will be again controlling. There are cases that say, you know, the Ten Commandments are inherently religious and therefore could be problematic if just placed on their own. However, if we’re going up to the Supreme Court, I think the Supreme Court will be able to construct a history around the Ten Commandments as being foundational to our nation’s culture and history and who we are as a people. And so I think that they are not gonna strike down Ten Commandments display, even if it’s all on its own outside of a museum on government property in schools.
Alison Gill:
They could just talk about the educational benefits, right? I mean–
Professor Caroline Corbin:
Now thou shall not covet the neighbor’s wife, I dunno, I think it’s fall under one of their more recent bans. They have so many bans in public schools. I would think that the Bible would get banned under some of those. Even if not the Ten Commandments, that’s a harder call. Again, that really depends on whether they care anymore about protecting students. Again, I mean the Ten Commandments are not the basis of our law. Most of the Commandments have nothing to do with law.
They have to do with having one God observing the Sabbath, honoring your parents, not coveting. These are not legal things. So I don’t know what they’re gonna do with the 10 and the, and I think that’s gonna be, that’s definitely gonna reach them because there are so many states now trying to impose Christianity in the schools. I would hope that they would strike that down. I don’t know why I’m not as confident that they’re gonna uphold it and it may just be wishful thinking.
But there is very clear precedent on this and you are right of course, that they can ignore precedent because it was based on tests that they have now eliminated. But I don’t know if there’s a history and tradition of Ten Commandments in the public schools. Right?
And of course there’s also the really obvious problem that any version of the Ten Commandments is gonna be favoring one religion or some religions over others, right? There is not a single Ten Commandments. There’s the Jewish Ten Commandments, there’s the Catholic Ten, Commandments, there’s Protestant Ten, Commandments. They’re all different. And so by virtue of choosing one of them, they’re gonna be favoring one religion over another. But that again, that may be something that they happily gloss over. And so I’m bumbling over the ones in school because every fiber of my being says that violates the Establishment Clause. And yet I’m not, I don’t know what the court would do with that.
Rebecca Markert:
Yeah, I think you’re right. And we do see a lot of states entertaining legislation that would put these up in schools. I’m thinking particularly of efforts currently in Texas to put the Ten Commandments up in the form of posters in public schools. I do think that that’s being set up as a case to overturn Stone versus Graham, which was the case from 1980 that said that that display was unconstitutional. So, that’s something that I think we’re gonna see.
So the last two that I have, we kind of talked about at length about funding to religious organizations, including schools and then school prayer.
Professor Caroline Corbin:
Well, again, the funding of the public schools depends on the context, right? If you are only funding religious schools, I think that would still violate the Establishment Clause. Now, I’m assuming you’re imagining some program that’s open to secular and private schools, like, and it just so happens that all the private schools are religious. Would that violate the Establishment Clause that would not although, so I’m still not sure if you can use direct funds for religious purposes, right?
All the funding cases they’ve decided so far, they have still been able to claim either that the funding was used for secular purposes. So even if the money went directly to a church, it was used for its playground, which was something secular. Or if the money went to a religious school, it went there indirectly because of a voucher program or a tax rebate program or something like that. So again, I think the case we’re gonna see is it’s gonna be direct funding to a religious school that’s using the money for religious purposes.
.Alison Gill:
It’ll be the charter school cases, right? The charter school case are ginning up in Oklahoma.
Professor Caroline Corbin:
And, and that will really be the final, like there is no limit on funding if you make it available to both religious and secular. We’re not quite there yet. Right? They’re still, the courts is still trying to say it’s discrimination if you won’t give the money just because they’re religious in character, right? They haven’t said you can give the money to religious school. Even if they use it for a religious purpose, they actually kind of claim that, like that’s still something that’s still like the, the, the bricks are there, right? They’re crumbling.
The cement has eroded. But that part of the wall is just a foundation. It is really eaten away. That part of the wall is still there. You cannot give direct tax mayor money to a religious church or school that uses it for a religious purpose. That’ll go, I suspect, but it’s not gone yet.
Liz Cavell:
I mean, isn’t that kind of what’s happening in Carson or do you view that as indirect in some way?
Professor Caroline Corbin:
I still think that’s indirect cuz the money didn’t, cuz it was that it was a very complicated structure.
Alison Gill:
But it did get rid of there. The use versus status. Status distinction. Yes. And like that was, that’s a key sort of component of what we’re talking about here.
Professor Caroline Corbin:
But as I said, they haven’t, so I think they will do it. I’m just saying they haven’t yet done it. So if you’re in the lower courts, you can still make that argument.
Alison Gill:
Got it, got it.
Rebecca Markert:
So what do you think is left of the Establishment Clause
Professor Caroline Corbin:
A little–
Rebecca Markert:
And what’s the future of litigation? Where do you see these cases coming?
Liz Cavell:
Like if you’re looking for a good case to take, what does that look like
Professor Caroline Corbin:
Case there are just cases that gives the Supreme Court opportunities to further chip away at the Establishment. Clause, I’m sorry.
Liz Cavell:
<Laugh> fine.
Professor Caroline Corbin:
So in terms of prayers, you cannot intentionally discriminate against other religions. And you can’t say we’re gonna have legislative prayers, but only Christians are welcome to give the opening prayer. You still can’t do that. I don’t think you can erect a giant Latin cross in the courtrooms. There’s no history or tradition of giant Latin crosses in the courtroom.
I don’t know if they can construct a story around that being something that’s deeply rooted in our history and tradition.
Some new crosses without stories might violate the Establishment Clause. I think you can’t, like if you’re gonna have money end up at at religious places, you can’t give it only to religious places, right? So if you’re sending up, if you’re gonna have a, you can’t have a program to buy sacred text, you can’t have the sacred text fund that’s only used to buy sacred religious books.
Right, because that again, I think in the funding context you have to make it equally available to religious and secular. Although again, you know, whether you can directly fund religious activities, I don’t know. And I think in terms of coercion, like you still can’t force someone to participate in prayer on pain of legal punishment, although the government never says you must participate otherwise we’re going to exclude you. So I don’t think those cases ever existed in the first place. So maybe that’s really not as helpful.
Sothere’s probably other things left, maybe. What do you did? What, what did I leave off my list? Like, so again, I still think you cannot intentionally and obviously and on the, on the face favor one or some religions over others as sort of a bigger principle. I mean there were so many ways to get around that so that you still could favor Christianity, but you can’t do it on its face <laugh>. You can’t do that on the face of things and funding, maybe you still can’t only fund religion and directly fund religious education, exercise. I dunno, what do, what do you all think of my list?
Liz Cavell:
Pretty short
Alison Gill:
It’s pretty narrow. It’s not just short, but it’s narrow. Like those are conditions like that are very specific and easy to get around. And I I would also say that it doesn’t provide much leverage for us as advocates or other litigators in the field to sort of have leveraged to rebuild the wall of church state separation. It doesn’t provide us a context to say, okay, how do we advance rights? How do we separate church and state? The answer is we rely on other constitutional protections or, or we go into a different field of law, right? There’s not–
Professor Caroline Corbin:
Right. I think what you want are cases that won’t go to the Supreme Court. Cuz again, I think my answers are very different for the lower courts than they are for the Supreme Court because I think that a lot of the lower courts, even though the Supreme Court has eliminated its longstanding tests, I think the lower courts will still follow precedent or I think that’s their inclination is in the first instant, they’re not gonna be. Now of course there are some exceptions, but I think most are not gonna be trailblazers in eviscerating the Establishment Clause.
And so I think you have more room to maneuver with cases that don’t get to the Supreme Court. Cuz then you can bring your challenges to religious displays and your crosses and the Christians that are all by them, the nativity scenes with nothing else around them and the things that are going on in the schools.
I think there’s a lot, a lot of precedent and principles that can be argued in favor of them violating the Establishment Clause, the funding, like the history, like there’s history and tradition about not funding, right? So I, again, you need to get the religious scholars who really look at this and have them make like, I think you wanna make arguments about precedent, about principle and then you get them to make the historical argument and to say all these three strands inevitably point towards finding this unconstitutional. You can manipulate history too, is what I’m saying.
So maybe the one other limit, and this is the one and this I haven’t, it’s like, are these places discriminating and how does this intersect with the equal protection Clause? I think I have to, I mean the state action doctrine is a disaster and a mess and not one I’m familiar with, but there has to be at some point at which equal protection comes into play with the government giving money to organizations that discriminate, right? And so that’s a potential limit on funding like that. Although again, you know, the Supreme Court might bulldoze over that as well.
Liz Cavell:
While we’re stuck in this defensive posture on the Establishment Clause, it’s hard to effectively litigate offensively to expand Establishment Clause protections when you’re litigating a policy of avoidance of the Supreme Court, right? Like you can only do so much there. But I think what we’re all sort of thinking through collectively is how do we use these other tools?
Professor Caroline Corbin:
I think you need to take a look at our history and revisit a history because the states have in their state constitution prohibitions on funding religion. And the Supreme Court tries to get around that by saying it’s motivated by anti-Catholic animus. Well first of all, if they’re relying on history and tradition, it doesn’t matter what motivated them, right? Because you can say Christian prayers were motivated by anti-Semitism, like unanimous matters or it doesn’t.
Alison Gill:
Right? It doesn’t matter if for crosses, right? Apparently if you have 40 feet tall crosses, but–
Professor Caroline Corbin:
But second, I think there is, I think we have not really mined our history enough in terms there’s a lot of history and support of separation of church and state. And I think that’s the history that’s gotta be presented in all these cases. And starting with Memorial and Remonstrance, which talks about degrading from the ranks of equal citizenship, all those who don’t belong to the majority faith, there’s a rich, rich tradition of secular government. And so if they’re going to look to history, so can we, because I said the history doesn’t always point in one direction and often it might point in a more secular approach. These things fight history with history.
Alison Gill:
And the other answer is court reform
Liz Cavell:
Always.
Rebecca Markert:
Well, I think that’s it for today’s episode. We want to thank you Professor Corbin so much for joining us. This was a great discussion. I’m sure our listeners are gonna learn a lot, so thank you very much.
Professor Caroline Corbin:
Thank you so much for having me. As soon as I saw this podcast, I crossed my fingers hoping you would have me on the guest. And so I’m delighted to be here. I hope this is the first of many podcasts.
Rebecca Markert:
Wonderful. Well, thank you very much. So that’s it. And if you don’t already, please be sure to check us out on Twitter and on Facebook and online we-descent.org. We’d love to hear how you’re enjoying our show, so please remember to leave us a review. Thanks for tuning in. I’m Rebecca Markert.
Alison Gill:
I’m Alison Gill.
Liz Cavell:
And I’m Liz Cavell. Thanks for listening.
Rebecca Markert:
We Dissent is a joint production of the Freedom From Religion Foundation and American Atheists. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
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