Reflections On The Establishment Clause

Stanley Fish posted an interesting piece on his NY Times blog today. It deals with the history of the interpretation of the establishment clause. His conclusion seems to be that our nation's interpretation of the clause is destined to be as ambigious in nature as the clause itself:

Notice that the cases I have cited in these two columns span more than 50 years and 10 administrations. In that time, the cast of characters on the Supreme Court has constantly changed, and the line dividing the opposing positions (which persist unchanged) does not correlate with differences of religion, politics, interpretive philosophy, seniority or judicial temperament. The arguments that emerged full-blown in 1947 are the arguments that are still being run today. There is no progress to be discerned; no clarity has emerged; no consistency has been achieved. Almost all of the decisions, in whatever directions they tip, are 5-to-4. It’s a mess, and more than once the justices themselves have commented that the jurisprudence in which they are engaged is incoherent and chaotic.

If there is a pattern at all, it is most assuredly not linear. Rather it is a pendulum, or a roller coaster or, at times, a kaleidoscopic fun house, as we are told that a crèche set up in a public sphere with state funds is not an establishment of religion (Lynch v. Donnelly), while the delivery of a prayer carefully denuded of any sectarian content (or any content at all) at a middle school graduation – the very middle school from which I graduated in some other century – is. (Lee v. Weisman, 1992).

That is why I said at the outset that blaming either evangelical ideologues or the administration they may be said to own for this or that decision is an oversimplification. The fault, dear readers, lies not in the players – on or off the Court – but in the enterprise, an enterprise so fundamentally divided against itself, that it will continually reproduce its built-in ambiguities and contradictions no matter what issues are brought to its bar or whose hands are, at the moment, on the wheel.

Comments

[Rick Quinn]

Hi Scott,

Great to stumble on your blog. I've thought of you and your wife from time to time, with fondness.

Just because I'm a lawyer, doesn't give me the *authority* to speak on the law, especially against a guy like Fish.

But, I can say this: Establishment Clause jurisprudence is complex, and has changed over time; but it is neither incoherent nor contradictory. Specific facts of particular cases give the Court the opportunity to reflect on its commitment to stare decisis, sometimes overruling itself. And certainly there is an interpretive continuum between so-called 'originalist' procedure and the varying forms of more pragmatic approaches to understanding the Constitution and relevant statutes. But this in no way means that interpretation is futilte, that meaning is ethereal, or that the quest for clarity is quixotic.

Blowhards, talking heads, pundits, and religionists in the public eye may all be oversimplifiers...but Fish, at least in this case, can count himself among them.

[Scott Lenger]

I think the greater problem with the Establishment Clause is the false understanding that one can specifically determine what ideas fall under the category of non-religious.