Legal titan Chemerinsky champions First Amendment

Erwin Chemerinsky gave this speech, edited for print, at FFRF’s October 2014 convention in Los Angeles. He is the founding dean of the University of California-Irvine School of Law and Raymond Pryke Professor of First Amendment Law. He previously taught law at Duke University and the University of Southern California. He’s the author of eight books, including The Conservative Assault on the Constitution and his latest, The Case Against the Supreme Court. Last year, The National Jurist magazine added him to its list of “most influential people in legal education” in the U.S.

Richard Bolton, longtime FFRF member and outside ligitation counsel:

I am very honored to introduce Erwin Chemerinsky, the awardee for Champion of the First Amendment. There are numerous reasons, both independent and cumulative, for Professor Chemerinsky to be given this award. In particular, he was the intellectual architect of the challenge we made to the housing allowance and the parsonage allowance.

Several years ago there was a case pending in the 9th Circuit involving Rick Warren and the housing allowance. The issue of the constitutionality of that benefit to ministers of the gospel was not directly raised by any of the parties, but the 9th Circuit asked Professor Chemerinsky to weigh in with a “friend of the court” or amicus brief. He prepared that brief and has subsequently written on it in very influential law review articles.

The 9th Circuit ended up not deciding the issue because of some political and procedural issues that basically rendered the case moot, but subsequently the Foundation has challenged the constitutionality of the housing allowance.

His influence is not just in the classroom or in the area of academe. He frequently argues cases before the nation’s highest courts, including the U.S. Supreme Court. He argued in particular, I recall, the Van Orden case in the Supreme Court against the Ten Commandments monument at the Texas Capitol. He writes a weekly column for the Orange County Register, monthly columns for the ABA Journal and the Daily Journal and frequent op-ed pieces in newspapers across the country. He has written more than 200 articles in top law reviews.

His influence is very important to the Foundation’s approaches to enforcing the First Amendment through judicial strategy. Basically, in this area, Professor Chemerinsky is a titan.

By Erwin Chemerinsky

Thank you for the incredibly kind introduction. I wish my mother were here to listen to it. Thank you for this amazing Champion of the First Amendment award. I hardly feel deserving of it, but I promise I will do all I can in the years ahead to try to live up to it. The thesis of my remarks is a simple one: Now more than ever, we need the Freedom From Religion Foundation. In 1947 in Everson v. Board of Education, the Supreme Court held that the Establishment Clause of the First Amendment applies to state and local governments. All nine justices believed that the Establishment Clause was meant to create a wall that separates church and state. Now for the first time since 1947, a majority of the court rejects that notion. We have a Supreme Court that is hostile toward freedom from religion.

First, I want to sketch the different views of the Establishment Clause. Second, I want to explain what everyone here believes — why FFRF is correct — that there must be strict separation of church and state. Third, I want to talk about the current court and the belief of the majority of the justices, and how they reject this separation. Finally, I’ll talk about what this means for the foreseeable future, and why it means the activism and involvement of all of us is more important than ever. 

Over the years since Everson, three major theories have developed. One I have already alluded to: strict separation. It takes its inspiration from the words not of a liberal law professor, but from Thomas Jefferson, stating that there should be a wall that separates church and state, a wall that is high and impregnable. This is not about hostility to religion. Rather it says that we want our government to be secular, and that the place for religion is in the home, churches, synagogues, mosques, in the private realm. I would say that until the 1980s, virtually every Supreme Court justice would endorse the idea that there must be a wall separating church and state.

In the 1980s, Justice Sandra Day O’Connor developed what I would call a second theory with regard to the Establishment Clause, what she referred to as a “neutrality theory.” She said that the Establishment Clause means that government has to be neutral toward religion and nonreligion, neutral among religions. Of course the problem with this is that symbols are always in the mind of the beholder. One commentator aptly said, “Justice O’Connor’s approach to the Establishment Clause is, ‘I know it when I see it,’ a much ridiculed phrase that comes from an opinion by Justice Potter Stewart, ‘I can’t define obscenity, but I know it when I see it.’ “

But by the late 1980s, thanks especially to the appointment to the Supreme Court of Antonin Scalia and Anthony Kennedy, a new theory developed, one that leaves very little of the separation of church and state with the Establishment Clause. These justices called their theory “accommodationism.” They said what government needs to do is accommodate religion. The majority of justices believe in it. Under this view, the government violates the Establishment Clause only if it literally establishes a church or coerces religious participation. Nothing else will ever violate the Establishment Clause. They believe that the framers of the Constitution meant to allow religion to be a part of government. They believe that the government should be able to give unlimited aid directly to religious institutions, so long as they don’t discriminate among religious institutions.

Theories in practice

To show you the differences among these three theories, I’ll use a couple of Supreme Court cases I’m sure are familiar to you. One was a 1989 case called Allegheny County v. American Civil Liberties Union. It involved two displays in the Pittsburgh area. One was in a county building where there was a large stairway display case. And in it, in December, was put a nativity scene.

The other case involved a Pittsburgh city building. In front of it, in December, was placed a menorah, a nativity scene, a Christmas tree, and a proclamation about the importance of tolerance in the holiday season. The Supreme Court said that the menorah was constitutional but the nativity scene was unconstitutional. How did they come to that conclusion? It goes back to the three theories. Three of the justices then on the court believed in strict separation. They would have said that both the nativity and the menorah are unconstitutional. They would have said, as I believe, religious symbols don’t belong on government property. Four of the judges took the accommodationist approach. They said there is no limit on religious symbols on government property. For them, both the nativity and the menorah are constitutional.

That left two justices, O’Connor and Blackmun, who took the middle endorsement approach. They said a nativity scene all by itself on government property is impermissible symbolic endorsement of religion. But they said it was OK to have a nativity scene as a religious symbol, so long as there are symbols of other religions and secular symbols. They said a menorah is a Jewish religious symbol, was accompanied by a Christmas tree and a proclamation of tolerance in the holiday season, so it was permissible. 

Van Orden v. Perry

I am going to give another example, Van Orden v. Perry, a case that I argued in the Supreme Court in 2005. It involves a 6-foot-high, 3-foot-wide Ten Commandments monument that sits directly at the corner of the Texas State Capitol and the Texas Supreme Court. It is clear to me that this violates the Establishment Clause. It is in big letters, “I am the Lord thy God” on top. It has the Protestant, specifically the Lutheran, version of the Ten Commandments. It is right at the seat of Texas state government.

But I knew going into the oral argument that there was no chance I was going to get four justices [to agree with me]. I knew that Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas take the accommodationist approach. In fact, at oral arguments, Justice Kennedy said to me with real hostility in his voice, “If your client doesn’t like the Ten Commandments monument, why doesn’t he just look the other way?”

Of course a constitutional violation isn’t excused by ignoring it. Besides that, there would be no stopping point. A city could put a large cross atop city hall and say, “If you don’t like it, look the other way.”

But I was also confident that I would get three votes going in, Justices Stevens, Souter and Ginsburg. They consistently took the strict separation approach. So I felt that the case was going to turn on Justices O’Connor and Breyer, who took that middle endorsement approach. I confess to you that it was really going to depend on Justice Sandra Day O’Connor.

My brief was a shameless attempt to pander to Justice O’Connor. If I could have, I would have put her picture on the front of my brief. Sadly, I got Justice O’Connor’s vote but lost Justice Breyer’s vote. Breyer said that this monument was not an endorsement of religion. It’s hard to imagine how a 6-foot-high, 3-foot-wide Ten Commandments monument exactly at the corner of the Texas State Capitol and Supreme Court was not an endorsement of religion, but once more you see the importance of these theories.

The second thing that I wanted to say is what everyone in this room believes. It is what FFRF is all about: That there should be separation of church and state. The reasons have been articulated from the very first days of American history. When the government becomes aligned with religion, inevitably people feel coerced to participate.

When John Ashcroft was attorney general, there were reports that he was regularly holding prayer sessions in his office. The Justice Department was quick to say that nobody was required to participate, but of course any lawyer who wanted to advance knew it was better to be there.

Greece v. Galloway

I’ll talk about the Supreme Court and Town of Greece v. Galloway that held that town board prayers did not violate the Establishment Clause. The average attendance at board meetings was between five and 10 people. Those who came were often people who wanted zoning variances or conditional use permits. How likely was it that they would not want to participate in the prayers when they had to go before the board to ask for something that is really important to their lives and their businesses?

James Madison also expressed why the separation of church and state is so important. He said, and this is his word, that it is immoral to tax some to support the religion of others. That is why the government should not be using tax dollars to support religion. And of course that is what FFRF has been arguing about and litigating about since its inception.

I also believe that while Justice O’Connor very well articulated the underlying rationale of separation of church and state, she didn’t always vote that way. She said, “No one should be made to feel like an outsider or an insider relative to his or her own government on the basis of religion.” This is what Justice Kagan so eloquently said in her dissent in Town of Greece: “We are an incredibly diverse society. There are people with religious beliefs, and those who don’t believe in religion.”

When the town begins every meeting for almost 10 years with a prayer by a Christian clergy member, those of different religions inevitably are made to feel like outsiders relative to their own government. Justice O’Connor, in an opinion in a case that I argued, said, “When we look at the history of the world, we can see so well how combining church and state is disastrous.” Don’t we want to learn from that? Why would we want to repeat that mistake in this country?

The current court

That leaves the third part of my remarks, the current Supreme Court. As I mentioned, when I argued Van Orden v. Perry in 2005, there were four justices who believed in the accommodationist approach to the Establishment Clause: Rehnquist, Scalia, Kennedy and Thomas. Today, as you know, there are five justices who believe in that approach: Roberts, Scalia, Kennedy, Thomas and Alito. In every case to come before the Roberts court, now with its nine-year history, the court has ruled against the separation of church and state.

There is the [California] case of Salazar v. Bono. It involves a cross in a federal park in the Mojave Desert. A challenge is brought arguing that this violates the separation of church and state. The federal district court declared it unconstitutional. The 9th Circuit Court of Appeals declared it unconstitutional. The 9th Circuit pointed out that the cross is a quintessential religious symbol, and only of Christian faiths.

Congress then passed a law that gave ownership of the small parcel of land where the cross is located to a Veterans of Foreign Wars group. The district court said the transfer is a sham. The 9th Circuit said it’s a sham. Anybody going through the park would still see the cross, and still see it as a symbolic endorsement of religion.

It came before the Supreme Court, and there is a very telling exchange at the oral argument between Justice Scalia and Peter Eliasberg, the ACLU attorney. Justice Scalia said, “Isn’t the cross a universal symbol of the war dead? To which Eliasberg said, “I’ve been to a lot of Jewish cemeteries and I have never seen a cross on a headstone.”

But the court by 5-4 reversed the 9th Circuit and sent the case back, indicating that the federal government giving up ownership of the parcel of land was good enough. Scalia and Thomas wrote a second opinion that is truly chilling. They said they don’t believe that anyone ever would have standing to sue to challenge a religious symbol on government property. They said no one is hurt by a religious symbol on government property.

That means it doesn’t matter where the government puts a religious symbol, it doesn’t matter what the religious symbol would be, they would never allow anyone to sue to challenge it. Four justices dissented.

Other cases

The second related case with the Roberts court was Arizona School Tuition Organization v. Winn, involving the law that gives individuals a tax credit for contributing to a school tuition organization. The 9th Circuit declared this unconstitutional and pointed out that virtually every dollar given was to benefit evangelical Christian and Catholic schools, the effect of which was to advance religion. The Supreme Court reversed 5-4.

The plurality opinion said there was standing to challenge government expenditure that aids religion but not standing to challenge tax credits. Justice Kagan ridiculed this in her dissent: “Does that then mean that the government can give tax credits just for people who buy religious symbols or religious books? Surely that can’t be right.”

The first of the Roberts court’s decisions about religion was Hein v. Freedom From Religion Foundation (2007), which said that taxpayers lack standing to challenge the Bush administration’s funding of faith-based programs.

The most recent case from the Roberts court with regard to the Establishment Clause was just this past spring. I’ve already spoken of Town of Greece v. Galloway. Greece has about 100,000 people and is outside of Rochester, N.Y. In 1999, it adopted the practice of every month inviting a Christian clergy member to deliver a prayer before town board meetings. From 1999 to 2007, only Christian clergy members were invited to deliver the prayer.

The 2nd Circuit U.S. Court of Appeals ruled that violated the Establishment Clause. It should have been a really easy case under the Establishment Clause. Under any of the theories I mentioned to you, this should be unconstitutional. The town was coercing religious participation. The town was aligning itself with Christianity. But the Supreme Court by 5-4 reversed and held that this was constitutional.

I do not think we can excuse the Obama administration here. In Arizona School Tuition Organization v. Winn, the Obama administration filed a brief in support of the tax credits. In Town of Greece, the Obama administration filed a brief saying prayers should be allowed. It is inexcusable that the Obama administration filed the same kind of brief we have seen from the Bush administration or from the Reagan administration.

Justice Kennedy wrote an opinion with Justice Roberts and Justice Alito saying there is a long history of legislative prayer in our country. It does not matter if it is sectarian or nonsectarian. He said it is permissible unless, and I am not sure what this means, there is a pattern of prayer over time that proselytizes or denigrates religion.

Didn’t the town have a pattern of prayer over time that proselytized? Justice Thomas wrote a concurring opinion in which he said that state and local governments never can violate the Establishment Clause. He said that he believes the Establishment Clause was just meant to limit what the federal government can do. He is the only justice since 1948 who takes the position that the Establishment Clause does not limit what a state or local government can do. This also is chilling. If a state wanted to declare an official religion and compel participation, it would not violate the Constitution for Clarence Thomas.

Then in an opinion joined by Justice Scalia, Thomas said that the government violates the Establishment Clause only if it coerces religious participation. For them, nothing else would ever violate the Establishment Clause. Justice Kagan wrote an eloquent dissent.

All of these four cases, all decided 5-4, have rejected the separation of church and state. There are five justices on the current court who take the accommodationist approach.

What’s ahead?

Let me conclude by talking about what this is likely to mean for the future. I think this is a court that will allow much more religious involvement in government proceedings. We see that already with Town of Greece v. Galloway. The day the decision came down, I got a call from an attorney who represents school boards all over the country. He said as soon as the decision was announced, he got calls from clients asking if they could recite Christian prayers at their school board meetings.

I think we are going to see prayers at school board meetings, park commission meetings, police commission meetings, utility commission meetings and city council meetings in so many parts of the country. And isn’t that the very essence of an impermissible establishment of religion?

In light of five justices who take this position, it is why I say that all of our activism is more important than ever. We are going to have to fight this out at the political level. We are going to have to increasingly litigate in state court under state constitutions. We are going to have to fight hard to make sure that the next justices on the Supreme Court believe in separation of church and state.

It is why my theme for the afternoon is, now more than ever, we need the Freedom From Religion Foundation. Thank you and thank you for this wonderful award.

Freedom From Religion Foundation