Traditions of Conscience

The American Constitution and Religionby Richard J. Regan

The Catholic University of America Press. 304p $24.95

I admire the gumption of Richard J. Regan, S.J., who attempts and pretty well succeeds at making sense of the U.S. Supreme Court’s jurisprudence on the First Amendment’s free exercise and establishment clauses. Those few words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” have generated more judicial ink than any other part of our Constitution.

Unfortunately, for an entity whose appointed task is to make sense of all these judicial opinions, the U.S. Supreme Court itself has recognized that its First Amendment decisions are far from consistent. As Justice Clarence Thomas said in his concurrence in the Elk Grove School District (pledge of allegiance) case, “Our jurisprudential confusion has led to results that can only be described as silly. In County of Allegheny...for example, the Court distinguished between a crèche on the one hand and an 18-foot Chanukah menorah placed near a 45-foot Christmas tree on the other. The Court held that the first display violated the Establishment Clause but that the second did not.”

Silly it may be, but it is still the law, as decreed by the highest court in the land. Regan wades into this swamp of self-declared judicial silliness in The American Constitution and Religion, which is his compelling attempt to make sense of things. It is a credit to Regan’s encompassing scholarship and analytical ability that he by and large succeeds at this task. Regan establishes in his first chapter how the American constitutional regime works, explaining that it has been a judicial function ever since Chief Justice Marshall established the principle in Marbury v. Madison (1803) to say what the Constitution is. Well and good, but who prevents the justices of our Supreme Court from rewriting the Constitution in the guise of interpreting it, or, as Regan asks, “Who will watch over the guardians?”

Great question, but as Regan implies, without saying, the answer is no one. True, Congress can write new laws when the Supreme Court renders a terrible decision, and Regan explains that Congress did precisely that with the Religious Freedom Restoration Act after Justice Antonin Scalia’s opinion in Employment Division v. Smith eviscerated the constitutional protection that churches and religious people had always enjoyed under the compelling interest test. (Regan is too kind to say it was a terrible decision.) But when it is a matter of constitutional interpretation, the court will always have the last word. They are, as the justices themselves have said, not final because they are infallible, but infallible because they are final.

Certainly, as Regan explains in his jaunt through the history of the state aid to religious school cases in Chapter Four, there was for too long a complete lack of consistency in the court’s jurisprudence on this, as on many other First Amendment issues. Regan writes, “On the one hand...the Court, by distinguishing the secular and religious functions of church-affiliated colleges and universities, has upheld direct aid to the colleges and universities for the construction of buildings exclusively devoted to secular uses. On the other hand, the Court, by failing to separate the secular and religious functions of church-related elementary and secondary schools, has disallowed direct aid to the schools for teaching secular subjects. On the one hand, the Court has upheld lending secular textbooks to students attending parochial schools. On the other hand, the Court...disallowed lending other secular instructional material [maps and globes] to such students.”

It was in the context of aid to religious schools that the court came up with the well named Lemon test (Regan consistently calls it the Schempp-Lemon test) that prevented most aid to religiously affiliated schools. They did this on the constitutional theory that the steps required to make sure that neutral aid did not go for sectarian purposes would involve the government in an impermissible entanglement with religion that would prevent the aid in the first place, a classic judicial Catch-22.

Justice Scalia wrote, “As to the Court’s evocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after repeatedly being killed and buried, Lemon stalks our Establishment clause jurisprudence once again, frightening the little child and school attorneys....”

Regan, correctly I think, believes, as does Scalia, that Schempp-Lemon is a dud and that there is no real constitutional barrier to aid to religious schools for purely secular functions. The implication of Regan’s analysis of the school aid cases, then, is that there was more than just judicial analysis going on in these inconsistent decisions by which state aid was consistently denied to Catholic parochial schools. This raises the question that Regan asked earlier, “Who will watch over the guardians?”

The American Constitution and Religion provides a rather complete tour of the U.S. Supreme Court’s First Amendment jurisprudence from the crèche and aid cases mentioned above to church property and employment cases to flag salute and conscientious objection cases. In some places, Regan’s approach is more summative than analytical, but then it is tough to analyze inconsistency. The book ends with a fine chapter on Western traditions of conscience which, strictly speaking, is off the book’s central topic, but I was happy to have Regan’s erudite and engaging thoughts on this matter. Like the rest of his book, it was a highly informative and enjoyable exercise.