Prof. Thai responds: Catholic Judges and the Religion Clauses

“Much thanks to Prof. Garnett for taking the time to respond thoughtfully to my two novice questions.  I very much appreciate his kindness in responding and his considered reflections.  If I may pursue the thread further, I’d like to offer a question, a clarification, and a tentative observation.

First, with respect to Free Exercise, Prof. Garnett writes that it is “entirely Catholic” to leave it up to the legislative branch to grant religious exemptions from neutral, generally applicable laws, and that the legislature need not grant them when “damaging to the common good.”

As I wrote earlier, I am not a scholar on Catholic thought.  However, my “gut” Catholic reaction to Smith is what Prof. Garnett posits might be the reaction of most of the other MOJ-ers, i.e., that Smith was wrong.  And my reaction is based on speculation as to the Church’s likely response to various hypothetical situations, including one in which all states revoke their legislative exemptions for underage drinking in the case of sacramental wine.  In the absence of Smith, would the Church simply seek state-by-state legislative reversals, or would it also argue that even non-discriminatory legislation that bars religious practices infringes upon religious freedom, both in a Catholic and a constitutional sense?

Second, let me clarify my enigmatic comment about the views of the current Catholic justices on the Establishment Clause.  I did not mean to suggest (and am embarrassed that I apparently did) that they would view “actual coercion” as fine.  On the contrary, I agree with Prof. Garnett that no justice, of any religious or ideological stripe, believes that.  I meant to make the opposite point.  To my knowledge, every justice, current and former, accepts that the EC at minimum prohibits actual coercion.  The current Catholics simply split as to what kind of coercion qualifies.  See Lee v. Weisman (Kennedy—“subtle and indirect” coercion prohibited; Scalia & Thomas—only direct coercion “by force of law and threat of penalty” counts).

What is interesting to me is that these Catholic justices apparently also regard this constitutional minimum as the constitutional maximum,  see Allegheny County (Kennedy, dissenting, with Scalia), or at least coercion + “neutrality.”  None of them like the less religiously accommodating (and more subjective) endorsement test, and they all are hostile to the least accommodating EC principles of Lemon.  See, e.g. Lamb’s Chapel (Scalia, concurring, with Thomas); McCreary County (Scalia, dissenting, with Kennedy and Thomas).  Brennan seems to be the only Catholic justice to have embraced Lemon.  See, e.g., Lynch (Brennan, dissenting).  So, on the EC side, we have three Catholic justices who incline towards accommodation (Scalia, Kennedy, and Thomas), and only one who has inclined towards a strict view of separation (Brennan).

Now for my tentative observation.  It appears that the views of the current Catholic justices on both clauses tend to favor majority or mainstream religions, which is what Catholicism is now (can anyone doubt it, with a majority of them on the Court?).  These religions have the least need for constitutional protection of their religious practices, because they are politically powerful enough to obtain legislative accommodations.  By the same token, they may have less to fear, and likely more to benefit, from a view of the EC that allows greater public accommodation of religion.  Prayers at graduation, monuments on public grounds, and vouchers to parochial schools are more likely, respectively, to be said by, reflect, or go to mainstream religions than minority ones (e.g., I’ve yet to see a Wiccan pentacle at a state capitol).  Am I wrong?

On the flip side, it appears that Brennan’s views on both clauses tended to be more constitutionally protective of minority religions.  This majority/minority divide between the Catholic justices appears to reflect somewhat their general jurisprudence.  But does it also reflect their Catholicism?

Finally, let me make clear that in making these tentative observations, I am not yet implying motivation.  Nor am I asking (yet) the more fundamental question whether Catholic justices should vote their religion (which they all seem to put aside at their confirmation hearings).  At this stage, I simply want to explore further the preliminary questions about what might be “Catholic” views of free exercise and establishment.  Thanks for helping me to think about these issues more deeply.”