NONPREFERENTIALISM

The Supreme Court has struggled since the midtwentieth century to articulate some single principle that might guide its decision of cases construing the First Amendment’s establishment clause. In Everson v. Board of Education (1947), for example, the Court announced that the clause should be understood to have erected the ‘‘wall of separation’’ between church and state. But a metaphor, however helpful, lacked the precision necessary to resolve specific issues such as the Court confronted in Everson. Accordingly, the majority opinion in Everson more specifically interpreted the principle of separation to forbid laws that aid one religion or all religions, prefer one religion over another, or prefer religion generally over nonreligion. It summed up the essence of the establishment prohibition as requiring government to maintain a posture of neutrality both among various religions and between religion and nonreligion.

Neither Everson’s catalogue of prescriptions nor its principle of neutrality seemed sufficient to resolve the myriad establishment issues that the Court was called upon to decide in the decades after Everson. Eventually, it codified in Lemon v. Kurtzman (1971) a test for interpreting the establishment clause. This test prohibited government action lacking a secular purpose or secular effect, or which amounted to an excessive entanglement between government and religion. Still later, Justice Sandra Day O’Connor convinced the Court—at least for a time—to supplement the Lemon test with a reformulation of its essential prohibition articulated in terms of a ban on government endorsement of religion. According to O’Connor, the essence of the establishment prohibition was to prevent government from making an individual’s beliefs or lack of belief relevant to that individual’s standing as a citizen.

More than a few observers of these doctrinal developments have expressed dissatisfaction with the overall tenor of the Court’s establishment clause jurisprudence, insisting that the Court’s decisions have been pervasively hostile to religious belief and practice. Some of the Court’s critics have argued that its various doctrinal formulations are inconsistent with long-established forms of government support for religion, such as congressional chaplains and presidential proclamations establishing national days of thanksgiving and prayer. The same critics have been quick to note that the Court’s own sessions begin with a religious invocation: ‘‘God save this honorable Court.’’ They suggested an alternative interpretation of the establishment clause, one that would permit government to support religion, so long as the support is nonpreferential. This view—known as nonpreferentialism— specifically repudiates the idea that government must remain neutral as between religion and nonreligion. So long as government maintains neutrality among various religions, it has satisfied the requirement of the establishment clause. The nonpreferentialism position has the support of several scholars and has been offered as the correct reading of the establishment clause by one Supreme Court justice—Justice William Rehnquist.

The Rehnquist Dissent in Wallace v. Jaffree

Then-Associate Justice Rehnquist chose a dissent in Wallace v. Jaffree (1985) as the occasion for urging a fundamental re-examination of the meaning of the establishment clause. The case involved one of the varieties of ‘‘moment of silence’’ laws that sprang up in the wake of the Court’s school prayer cases—Engel v. Vitale (1962) and Abington School District v. Schempp (1963). In Engel, the Court invalidated the state-sponsored recitation of a prayer in public schools composed by the state’s board of regents. Subsequently, in Abington, the Court extended this holding to declare unconstitutional state-sponsored Bible readings and recitations of the Lord’s Prayer in public schools. Opponents of these decisions argued that the Court had banished prayer from the public schools and, after attempts to gain passage of a constitutional amendment allowing state-sponsored prayer failed, began to champion in the 1980s laws creating ‘‘moments of silence’’ in which school children might, if they chose, either meditate or pray. In Wallace v. Jaffree, the Court held unconstitutional an Alabama statute that had provided for a ‘‘moment of silence’’ in public schools. Most of the justices of the Court, in separate opinions, expressed the view that at least some such statutes might be constitutional. Nevertheless, a majority of the justices concluded that the legislative history of the Alabama law revealed an intent on the part of the state legislature to return prayer to public schools. The law thus lacked a secular purpose in the eyes of the Court’s majority, and was unconstitutional under the Lemon test.

In a dissenting opinion, Justice Rehnquist proposed that the Court revisit its jurisprudence under the establishment clause. In particular, he urged the Court to dismantle the ‘‘wall of separation,’’ which he claimed was a metaphor that distorted the meaning of the First Amendment. Parsing the debates about the proposed amendment in the First Congress, Rehnquist concluded that these debates revealed only an intent on the part of Congress to prohibit the establishment of a national church or the preferential treatment of one religion over another. He also argued that the separation metaphor ignored a variety of historical practices in the United States, reaching back to the founding period, such as the designation of national days of thanksgiving and prayer. Rehnquist was confident about what the clause did not prohibit: It did not require government to remain neutral between religion and nonreligion, and it did not prohibit nondiscriminatory aid to religion. Since the ‘‘moment of silence’’ statute at issue in Wallace amounted to no more than nondiscriminatory support of religion generally, it did not, in Rehnquist’s view, violate the establishment clause.

The Arguments against Nonpreferentialism

Many scholars believe that the nonpreferentialism position does not do justice either to original understanding of the First Amendment or to the diversity of American religious experience. Although nonpreferentialists claim the authority of history, critics of the position dispute the nonpreferentialist reading of the nation’s early history. For example, James Madison is sometimes recruited in support of nonpreferentialism, partially through his original suggestion that the First Amendment prohibit establishment of a national religion. Nevertheless, it is clear from Madison’s letters and—even more—from his Detached Memoranda, discovered only in the twentieth century, that he believed that practices such as the appointment of chaplains for the houses of Congress and the declaration of national days of prayer were national establishments of religion and, thus, unconstitutional. Furthermore, as Justice David Souter argued in his concurring opinion in Lee v. Weisman (1992), the First Congress considered variant readings of the establishment clause that would have clearly embraced the nonpreferential position. That body, however, rejected these readings in favor of the final prohibition against laws ‘‘respecting an establishment of religion,’’ a formulation that is arguably the most expansive prohibition of all it considered.

Many opponents of the nonpreferential position contend that the various historical practices on which it relies are themselves contrary to the establishment clause. Madison himself, who authorized a national day of prayer and thanksgiving during the War of 1812, later concluded in his Detached Memoranda that this authorization was not consistent with the establishment clause. He was apparently willing to tolerate some deviations from the antiestablishment principle as de minimus violations. Others have suggested similar grounds for accepting certain forms of civic religiosity. Justice William Brennan, for example, argued in his dissent to the Court’s opinion in Lynch v. Donnelly (1984) that some forms of public religiosity amount to ‘‘ceremonial deism’’—that is, forms of religious expression that have, through ceremonial repetition, largely lost their religious content. Other observers have insisted that all forms of public support for religion, no matter how trivial, amount to breaches in the ‘‘wall of separation’’ and therefore violations of the establishment clause.

The nonpreferentialism position argues that government ought to be allowed to provide nondiscriminatory aid to religion. Nevertheless, the very possibility of there being forms of support for religion that are, in fact, nonpreferential is itself a dubious proposition, certainly in the context of modern American religious diversity. For example, it is doubtful whether there are any prayers agreeable to all believers or any support for some religions that is not, at the same time, contrary to the beliefs of other religions. So-called nondenominational prayers almost always privilege particular theological visions over others, such as a personal God over an impersonal one, for instance. At most, nonpreferential support for religion amounts to support compatible with a number of religions, and not targeted to please a narrow spectrum of religious sensibilities.

Although Justice Rehnquist argued in his Wallace dissent for the adoption of nonpreferentialism, he did not subsequently reiterate this position. Moreover, no other justice on the Court has signified support of this specific position, although Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas, along with Chief Justice Rehnquist, have been largely hospitable to attempts to recognize a greater latitude for government to support religious belief and practice. A majority of the Court, though, continues to reject the nonpreferentialism position in favor of the requirement that government remain neutral not only between religions but also between religion and nonreligion. Nevertheless, the Court still occasionally approves practices such as legislative prayer that are not readily consistent with its stated doctrine.

TIMOTHY L. HALL

References and Further Reading

  • Adams, Arlin M., and Charles J. Emmerich. A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses. Philadelphia: University of Pennsylvania Press, 1990.
  • Cord, Robert L. Separation of Church and State: Historical Fact and Current Fiction. Grand Rapids, MI: Baker Book House, 1988.
  • Curry, Thomas J. Farewell to Christendom: The Future of Church and State in America. Oxford: Oxford University Press, 2001.
  • Garry, Patrick M., Religious Freedom Deserves More than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion, Florida Law Review 57 (2005): 1–52.
  • Laycock, Douglas, ‘‘Nonpreferential’’ Aid to Religion: a False Claim about Original Intent, William and Mary Law Review 27 (1985/1986): 875–923.
  • Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. 2nd rev. ed. Chapel Hill: University of North Carolina Press, 1994.
  • Marsh v. Chambers, 463 U.S. 783 (1983).
  • Smith, Rodney K., Nonpreferentialism in Establishment Clause Analysis: A Response to Professor Laycock, St. John’s Law Review 65 (1991): 247–63.

Cases and Statutes Cited

  • Abington School District v. Schempp, 374 U.S. 203 (1963)
  • Engel v. Vitale, 370 U.S. 421 (1962)
  • Everson v. Board of Education, 330 U.S. 1 (1947)
  • Lee v. Weisman, 505 U.S. 577 (1992)
  • Lemon v. Kurtzman, 403 U.S. 602 (1971)
  • Lynch v. Donnelly, 465 U.S. 668 (1984)
  • Wallace v. Jaffree, 472 U.S. 38 (1985)

See also Accommodation of Religion; Ceremonial Deism; Civil Religion; Establishment Clause (I): History, Background, Framing; Establishment Clause: Theories of Interpretation; No Endorsement Test; Rehnquist, William H.; Wallace v. Jaffree, 472 U.S. 38 (1985)

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