From Liberty to Equality: The Transformation of the Establishment Clause

Abstract

In this Article, Professor Feldman argues that in the last fifty years, the Supreme Court has transformed the rationale of the Establishment Clause from protecting the liberty of conscience of religious dissenters to guaranteeing the political equality of religious minorities. When it invented the modern Establishment Clause in 1947, the Court anachronistically emphasized avoidance of religious violence, but correctly identified protection of religious liberty as the central goal of the Clause. Since then, the Court gradually developed a new justification for the separation of church and state: entanglement would cause religious minorities to feel like political outsiders, and thus create political inequality. Having traced the transformation from a liberty rationale to an equality rationale through the cases, Professor Feldman evaluates the consequences by reexamining the central modern Establishment Clause question: what is so special about religion? He argues that none of the possible answers suffices to explain why the Establishment Clause should be read to protect religious minorities' political equality. Religious minorities are not uniquely vulnerable to political inequality compared to racial, linguistic, or political minorities. The Article concludes by arguing that the political-equality approach to the Clause has distorted Establishment Clause jurisprudence. In the sphere of public manifestations of religion, it has produced tenuous distinctions between impermissible state action and permissible collective private action. In the sphere of government support of religious institutions, the political-equality approach, which set out to explain why the Constitution requires separation of church and state, could eliminate separation altogether by permitting government funding of religious institutions via formally equal, general allocations of funds.