David Souter’s announced retirement from the Supreme Court today is somewhat of a blow to establishment clause separationists, for whom there was no more eloquent a proponent than Souter. I’ve come back to Souter’s inspired concurrence in Lee v. Weisman more than once, so I thought I’d post some of that concurrence here. In Lee v. Weisman, a 5-4 majority found unconstitutional a public high school’s practice of inviting clergy members to deliver invocations and benedictions at graduation ceremonies. Souter joined the majority and in his concurrence (joined only by Stevens), began with a principle once the majority opinion
Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others.
The defendant school district in Lee v. Weisman, aware of its constitutional liability, sought to quell it by ensuring that the invocation (to be given by a Rabbi) be "denominationally neutral". The invocation would consist of generalized religious platitudes as opposed to specific denominational creeds.
Souter brilliantly countered this tack, first by offering a clear line of cases holding unconstitutional government preference for religion over irreligion; then by presenting a contratextual analysis of the establishment clause through its historical incarnations, interpreting its meaning by exhaustively comparing the rejected versions to final version:, finally concluding:
Though it accepted much of the Senate’s work on the Bill of Rights, the House rejected the Senate’s version of the Establishment Clause and called for a joint conference committee, to which the Senate agreed. The House conferees ultimately won out, persuading the Senate to accept this as the final text of the Religion Clauses: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." 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.
Souter establishes that the framers repeatedly and deliberately edited the clause to exclude incarnations of a modified or specific "religion," finally settling on "religion" in its most general sense, and argues that the only reasonable inference to be drawn is that their intent was to prohibit the federal government from favoring not only religion x, y, or z, but from favoring religion, period. Souter’s textual reading cannot be easily dismissed because, as he makes clear, the drafters of the Constitution explicitly considered the linguistic implications of each option before settling on the broadest one.
Souter goes on:
While these considerations are, for me, sufficient to reject the nonpreferentialist position, one further concern animates my judgment. In many contexts, including this one, nonpreferentialism requires some distinction between "sectarian" religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable tothe competence of the federal judiciary, or more deliberately to be avoided where possible.
If the government is permitted to advance a supposedly non-sectarian, or civil, religion, the Court will inevitably be thrust into the position of deciding whether a particular religious expression is sufficiently watered down and non-ecumenical to pass constitutional muster, and the Constitution plainly prohibits this. Souter explains why:
Nor does it solve the problem to say that the State should promote a “diversity” of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each. In fact, the prospect would be even worse than that. As Madison observed in criticizing religious presidential proclamations, the practice of sponsoring religious messages tends, over time, “to narrow the recommendation to the standard of the predominant sect.” Madison’s “Detached Memoranda,” 3 Wm. & Mary Q. 534, 561 (E. Fleet ed. 1946) (hereinafter Madison’s “Detached Memoranda”). We have not changed much since the days of Madison, and the judiciary should not willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes.
This is a point rarely advanced, but quite important: if government endorses a homogenized version of religious belief, it will effectively "crown a winner" from amongst religious competitors, and further, I’d argue, incentivize said competitors to match the religious message.
Souter then ably confronts the traditional counterargument–i.e., U.S. presidents, dating to around the time of the constitution’s drafting have issued generalized religious proclamations in inaugural addresses and Thanksgiving Day addresses, so therefore the framers could not have viewed the establishment clause as prohibiting state preferences for religion, generally:
The argument ignores the fact, however, that Americans today find such proclamations less controversial than did the founding generation, whose published thoughts on the matter belie petitioners’ claim. President Jefferson, for example, steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion Clauses. [...] During his first three years in office, James Madison also refused to call for days of thanksgiving and prayer, though later, amid the political turmoil of the War of 1812, he did so on four separate occasions. Upon retirement, in an essay condemning as an unconstitutional "establishment" the use of public money to support congressional and military chaplains, he concluded that "[r]eligious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed. Altho’ recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers." [citations omitted]
As for the presidents who, like Washington and Adams, unapologetically introduced public thanksgiving proclamations and prayer, Souter explains that "some Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next." Which goes on to this day, as evidenced by Bush’s and now Obama’s Office of Faith Based Initiatives, amongst a litany of other examples of impermissible government-religion cross-pollination.
By the time Souter wrote his concurrence in Lee v. Weisman, his view on the establishment clause had already become descendent, as Protestants and Catholics had been migrating to Evangelical megachurches, which openly preached sought government endorsement, and politicians wasted no time in openly courting this new, identifiable religious demographic. Indeed, his concurrence was only joined by two other Justices (Stevens, and somewhat mysteriously, O’Connor, whose later opinions would repudiate Souter’s view here), although Souter was also part of the 5-4 majority. But Souter’s more expansive concurrence represented an incisive, sensible view of the establishment clause that likely won’t be seen for some time, to our detriment.