Late Edition: Betting on the Court

These days, no self-respecting bookie would lay odds on how the Supreme Court will decide a case. To be sure, the justices have often been difficult to predict, but the current crop seems unusually inclined toward free-form constitutional interpretation.

Last term brought us a pair of affirmative action cases, which sent conflicting messages on whether and to what extent race may be taken into account in university admissions. It also brought us Lawrence v. Texas, which invented a hitherto unrecognized right to homosexual sodomy and came close to declaring relativism as the official moral code of the U.S. Constitution.

Two months ago, the majority took 170 pages to explain its decision upholding the McCain-Feingold campaign finance law. Political campaigning has now joined pharmaceutical manufacturing as a massively regulated industry. Almost everything we once thought we knew about the unfettered character of political speech will now have to be recalibrated.

If the speech and press clause of the First Amendment can be reinterpreted to serve contemporary ideological fashion, why not its religion clauses as well? The question is of some moment because two important religion cases are on this term’s docket. One will determine whether the state of Washington can withdraw scholarship assistance from an otherwise eligible recipient solely because he wishes to pursue religious studies (Locke v. Davey). The other will decide whether the presence of the phrase “under God” in the Pledge of Allegiance is a forbidden establishment of religion (Newdow v. Elk Grove Unified School District).

If the Court is true to the original meaning of the First Amendment, the justices will strike the Washington law as a blatant discrimination against free exercise, and they will allow school-children to acknowledge God when they salute the flag. But that’s a big “if.”

Beginning in 1947, the Court began to rewrite the original meaning of the Establishment Clause to comport with modernist prejudice. While many of its subsequent rulings continue that trend, others betray elements of a more traditional understanding. What we now have is an intellectually schizophrenic body of law that satisfies no one and makes every religion case into something of a riverboat gamble. What are we to make of a constitutional teaching that simultaneously bans nondenominational benedictions at school graduations and sustains the long-standing custom of legislative chaplains?

In case after case, the Court has been brought up against the contradictions of its prior rulings. The Ninth Circuit judges who struck God from the Pledge of Allegiance didn’t contrive their decision out of thin air; they had abundant Supreme Court precedent to rely on. The same holds true for the other Ninth Circuit judges who declared the Washington law unconstitutional.

The nub of the matter is that the Supreme Court can’t make its mind up whether accommodating religion is a good thing because it promotes free exercise or a bad thing because it entails an unconstitutional “establishment.” In a feckless effort to resolve this dilemma, it has contrived a multiplicity of “fail-safe” tests only to abandon or modify them in subsequent litigation. The result is a grab bag of precedents whose teachings point in multiple directions at once.

The only way out of this dilemma is for the Court to revisit its 1947 Everson decision. If, as the Court then declared, the government must remain neutral as between religion and non-religion, every public accommodation of religious sentiment necessarily becomes an unconstitutional establishment. If that is so, no aid of any kind can be given to religious studies, and the nation’s historical memory, institutions, buildings, and public customs must be stripped bare of any reference to God. If you follow Everson’s logic to its conclusion, only the village atheist can enjoy the First Amendment’s religious protections.

Even the Court seems to realize the absurdity of that conclusion, which is why it has failed to press the Everson argument to its logical denouement. But what is the sense of clinging to a doctrine if in order to avoid its implications you have to devise so many exceptions that they threaten to swallow the rule? In Davey and Newdow, the Court has a splendid opportunity to reconsider its misbegotten Establishment Clause jurisprudence. But don’t ask your bookie to lay odds on the probability.


  • Michael M. Uhlmann

    Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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