Some outcomes of Establishment Clause cases are better defended on realist rather than doctrinal grounds - that is, not on the basis of supposedly neutral principles, but by reference to some assessment of the kinds of church-state interactions that most Americans would tolerate. I call this the Establishment Clause gag reflex.
A constitutional gag reflex refers to the instinctive intellectual revulsion one might feel in response to the doctrine or holding of a case. For example, a contemporary judicial decision countenancing permanent denial of citizenship to racial minorities, or that denied to such minorities liberty or equality rights enjoyed by whites, is unthinkable today. The constitutional gag reflex functions rhetorically much like the parade of horribles, in which one lists the ostensible horrors that would follow from an outcome one opposes. However, whereas the parade of horribles derives its rhetorical force as much from the length of the parade as from its participants, the constitutional gag reflex is triggered by a sole potentiality whose singular undesirability is so obvious that its mere possibility causes one instinctively to shudder, albeit intellectually. The Establishment Clause gag reflex, then, is an instinctive intellectual revulsion to the possibility of particular resolutions of Establishment Clause cases.
The Establishment Clause gag reflex provides a helpful way to think about the current state of Establishment Clause doctrine. For the last two decades, the rhetorical center of the Clause has shifted, from a concern with separating church and state, to a concern with treating religion neutrally or equally with secular activities. The question of the day is whether neutrality should entirely displace separation, or whether separation should continue to trump neutrality in some situations. Locke v. Davey, for example, seemed to be about religious discrimination, as the appellee and the dissenting Justices argued. It also looked like content-based discrimination by the state against certain programs of religious education (which, after all, is speech). Neutrality would seem to require that religious individuals who otherwise qualify for state educational aid not be denied such aid simply because of they choose a pastoral course of study. But if this doctrinal principle had been implemented, it would have inevitably triggered paradigm violations of the Establishment Clause.
Although the Court has declined to allow neutrality entirely to displace separation as a doctrinal principle, it has no coherent account that defines the limit on neutrality. Though not a doctrinal principle itself, the Establishment Clause gag reflex reflects important constitutional instincts about the limits of neutrality as a doctrinal principle.
© 2004 J. Reuben Clark Law School
Frederick Mark Gedicks,
The Establishment Clause Gag Reflex,
2004 BYU L. Rev.
Available at: http://digitalcommons.law.byu.edu/lawreview/vol2004/iss3/3