Justice Breyer’s Establishment Clause Particularism

Thanks very much, again, to The Volokh Conspiracy for inviting me to blog about my recent paper on Justice Breyer’s decisions and votes in Establishment Clause cases. In this post, I sketch a second distinguishing feature of his work, namely, the fact that he regularly rejected the argument that church-state cases could or should be resolved by applying a particular “test.” Instead, his approach was consciously particularistic. He saw church-state controversies as highly and inevitably fact-bound, solvable only through a judicial balancing exercise akin to the proportionality review that is practiced in some other jurisdictions.

Justice Breyer was regularly described as “pragmatic.” To be sure, this term means different things to different people. Still, it likely connotes some impatience with claims that judges can and should resolve well legal controversies via the consequence-indifferent invocation and application of a particular legal rule or test. A distinctive feature of Justice Breyer’s approach to Establishment Clause controversies was his aversion to the constraints, and to what he regarded as the false promise of impersonality and regularity, of “tests.”

Justice Breyer staked out his anti-test position most memorably in the Texas Ten Commandments case. He opened his controlling concurring opinion with Justice Arthur Goldberg’s statement that there is “no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible.” “[N]o single mechanical formula,” he insisted, “can accurately draw the constitutional line in every case” or “readily explain” the outcomes in a broad array of Establishment Clause decisions. He went on:

If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment. That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court’s prior tests provide useful guideposts—and might well lead to the same result the Court reaches today—no exact formula can dictate a resolution to such fact-intensive cases.

To be sure, the doubts expressed over the years by Justice Breyer about Establishment Clause “tests” are not harbored only by him. It could even be said that the current “conservative” majority has come around to his view. For example, in 2022’s much-remarked Praying Football Coach case, Justice Neil Gorsuch, writing for a Court majority, observed that “in Lemon this Court attempted a ‘grand unified theory’ for assessing Establishment Clause claims” but then reported (no doubt to the surprise of many state-court and lower-federal-court judges) that this “ahistorical approach to the Establishment Clause became so ‘apparent’ that this Court long ago abandoned Lemon and its endorsement test offshoot.”

The point here is not that Justice Breyer agrees entirely with Justices Gorsuch about the Establishment Clause. It is, instead, that several of the “tests” which the Court announced in the 1970s and 1980s, and which were dutifully applied, over and again, by courts across the country—the possible results of which had to be anticipated by public officials at every level and in every aspect of government and were, in any event, usually revealed only after costly and unpredictable litigation—regularly did not produce outcomes that were consistent with any plausible understanding of the First Amendment. Every constitutional lawyer is, of course, familiar with the fact that judicial doctrines are artifacts and so can and should be evaluated with an eye toward how well they perform the tasks they are made to do. As Justice Breyer appreciated, the supposedly canonical tests which the Court held out to the political community, but then haphazardly applied in its own cases, consistently fell short in this evaluation.

This is not to say that it was or is sufficient for Justice Breyer to invoke “legal judgment,” to “take account of context and consequences,” or to acknowledge cases as “fact-intensive.” An appropriate respect for our Constitution’s structural features, which include an entrenched-in-text separation of powers and a meaningfully cabined judicial role in policymaking, should probably prompt the embrace of an even more modest, restrained, predictable, tradition-bound approach than his. The skepticism that Justice Breyer directs at the idea of a “single mechanical formula” for deciding cases arising under the Establishment Clause should give us some pause. Even if one thinks “the rule of law” is not only a “law of rules,” it is troubling to think that resolving disputes about matters so important and basic as the place of religion in public life, and the connections and boundaries between religious and political authorities, depends on judges’ imperfect and incomplete interesting-balancing, context-assessing, and consequences-predicting. If Establishment Clause disputes necessarily present questions of degree, invariably involve trade-offs, and inescapably require identifying and translating provisions’ (asserted) purposes, then then why would one believe that these disputes are best, or even better, resolved by judges through litigation than by citizens, officials, and legislators through politics?

Justice Breyer retired from the Supreme Court at a time when the Court’s Religion Clauses doctrines are contested, challenged, and changing. Although he made clear that he does not endorse entirely recent developments’ apparent trajectory, it could well be that, by voicing regularly his reservations about the lack of fit between the legal tests lawyers and courts invoke and apply, and communities’ values, practices, and traditions, he played a consequential role in dislodging unfounded presumptions and misguided precedents.