Week 4 Response: Questions about the Concept of Religion

The Establishment Clause (1^st amendment)—which the authors Gellman and Looper-Friedman suggest is “in flux”—directly and in a consistent manner addresses the “equality problem” that results from government religious expression, without the need for the Equal Protection Clause (14^th amendment). The authors claim that the 1^st amendment can lend itself to the reading that only “establishment of a state religion” or “actual coercion of nonadherents to practice…a particular religion” would violate the Establishment Clause, making most cases of government religious expression constitutional (Gellman, Looper-Friedman 676). Yet in the primary court case referenced by the authors (Van Orden v. Perry), the erection of a monolith depicting the 10 Commandments in front of a government building was defended not on account of a narrow interpretation of the Establishment Clause, but through an examination of the context surrounding the case. In his concurring opinion, Chief Justice Rehnquist noted that the monument was paid for and presented to the state by an international non-profit, making the state’s action simply the “passive” display of the contents of a souvenir, not the active promotion of a particular religion, nor expression of preference for any one belief (Rehnquist 3).

The authors point out that the Establishment Clause is not directly invoked in cases where the plaintiff challenges government religious expression for its “marginalization effect” upon members of a minority defined by religion, which the Equal Protection Clause prohibits on the grounds of religious discrimination (Gellman, Looper-Friedman 702-703). In the McCreary County v. ACLU case, however, the Supreme Court struck down a Kentucky courthouse’s display of the Ten Commandments specifically because it “identified nonadherents as outsiders” (O’Connor 3). By exhibiting the religious document as part of a “Foundations of American Law and Government Display,” the government demonstrated a clear bias toward Christianity, and the potential for marginalization of nonadherents was recognized and accordingly prohibited under the 1^st Amendment. (The disparity in Van Orden and McCreary decisions should not be seen as a sign of the “unpredictability” of the 1^st amendment, but as resulting from the nuances in the situations surrounding the cases.)

Gellman and Looper-Friedman’s main argument, that the Equal Protection Clause should be applied as the primary tool to protect religious minorities from marginalization is, in itself, a risky and unpredictable endeavor. In order for one to claim injury from government religious expression (under the Equal Protection Clause), the plaintiff must only be “a member of the community in which a religious display is exhibited,” and the “injury…need not be tangible or quantifiable,” potentially causing unproductive legal disputes among non-marginalized groups (Gellman, Looper-Friedman 723). While the Establishment Clause protects an equality interest similar to that of the Equal Protection Clause, this concept is applied within the already-established framework of the 1^st amendment, while invocation of the Equal Protection Clause could lead to the above-mentioned complications. The jurisdiction of the Establishment Clause, with its inherent protection of an equality interest, entails strict scrutiny of government religious expression, and need not be compromised by application of the Equal Protection Clause.