Mirror of Justice

Adam Samaha (U. Chicago) has a really interesting paper up on SSRN:  "Endorsement Retires:  From Religious Symbols to Anti-Sorting Principles."  Here is the abstract:

As last Term's Ten Commandments cases illustrated, the Supreme Court sometimes polices government use of religious symbols. This is partly attributable to the preferences of Justice O'Connor; she authored the "endorsement test" for establishment clause violations. With her departure from the Court, there is a good chance that the test will retire along with her. In this article, I explain two overlapping principles that could underwrite continuing judicial concern about government-backed religious messages: anti-proselytism and anti-sorting. The first principle was inspired by the school prayer cases and it is the conventional grounding for the endorsement test. But it is often a weak basis for attacking public religious displays, as other commentators have noted.

The second option - an anti-sorting principle - has not yet been explored. It is inspired by the Tiebout model of inter-local competition for citizen-voters. As applied to religious symbols, the principle would be attuned to their strategic use as signals to outsiders (and as reminders to insiders) regarding religion and political power within the community. More generally, the principle would target any state action that encourages citizens to sort themselves into religiously homogenous political jurisdictions. That principle obviously reaches beyond official use of religious messages. It can reorient thinking on an enormous range of questions. For example, attention to religious sorting deepens our understanding of founding era establishments, it might slant free exercise doctrine toward liberty norms and away from equality norms, and it even suggests a constitutional definition for religion. On the other hand, there are significant uncertainties in this field - normative, empirical, and sociological. Only a modest form of the anti-sorting principle should be enforced for now. In any event, religious sorting is a live social dynamic in America that deserves far more attention from the academy.

There is a lot here; too much for a blog post and -- I'm sure -- more than I was able to absorb on one reading.  Two quick thoughts:  First, I wonder what people think of Adam's statement that "there is a good chance that the [endorsement] test will retire along with [Justice O'Connor]"?    For what it's worth, I think Adam is probably right.  Still, it is strange -- isn't it? -- that a "test" that has been applied and argued over in dozens of cases, and dissected in hundreds of articles, would turn out to have been so dominant simply because it represented the preferred (and, maybe, idiosyncratic?) approach of one Justice who, as it happened, was "in the middle" of a divided Court for a long time. 

Next, while I think that Adam is really on to something, and right to urge scholars to pay more attention to "religious sorting" as a "live social dynamic", I remain leery of his suggestion that even a "modest" version of the anti-sorting principle -- i.e., a principle that "would target any state action that encourages citizens to sort themselves into religiously homogenous political jurisdictions" -- could or should be "enforced."  One can concede the importance of the concern, which Justice O'Connor raised repeatedly, about state actions that in fact communicate a message that religious beliefs are relevant to one's standing in the political community, without thinking that the (voluntary) sorting of citizens into religiously homogenous political jurisdictions is -- in itself -- something that government should (or effectively can) worry about. 

Clearly, a lot depends on how much we put into the word "encourages."  (And, Adam discusses this).  Imagine, though, a local government that adopts a particular "new urbanist" zoning policy, which facilitates dense, walkable neighborhoods, and that these neighborhoods turn out to be attractive to, say, Satmar Hasidim.  I'm concerned about using a religious group's strong preference for a certain good or rule or neighborhood feature as a fact that weighs against the validity of state action that produces or facilitates such a good, rule, or feature.   In any event, check out the paper.