A Milwaukee Journal Sentinel headline on March 6 accused Brian Hagedorn of abandoning a “radical” position. This is more evidence, we are to believe, that Hagedorn believes quirky things that no serious lawyer would even consider. In this case, the issue is Hagedorn’s former view that the First Amendment’s prohibition on laws “respecting an establishment of religion” is only a limitation on the federal government and should not, as lawyers say, be “incorporated” into the Fourteenth Amendment and applied to the states.
The newspaper quotes a couple of law professors, Wisconsin’s Howard Schweber and Marquette’s Scott Idleman, to imply that no serious people would possibly question incorporation of the Establishment Clause. If that’s what these scholars said (and I’m not sure Idleman did) then they are dead wrong.
And this is just as wrong as the idea that Hagedorn is somehow beyond the pale because he holds traditional Judeo-Christian beliefs about marriage. Here’s why.
If Schweber and Idleman mean that, there does not seem to be five votes to revisit incorporation of the establishment clause, I agree. But Schweber’s claim that is a “fringe view” reflects a lack of familiarity with the issue. Some of the leading scholars in the country have questioned incorporation of the establishment clause as has Justice Clarence Thomas.
Let me provide evidence. We recently filed an amicus brief in American Legion v. American Humanist Association, the “Peace Cross” case that was argued last week. Our principal argument had to do with how the Establishment Clause should be interpreted, but we also suggested that, given the incoherence of the Court’s Establishment Clause jurisprudence (something that is almost everyone does agree on), it might want to revisit incorporation. In the course of arguing that, we noted scholarship on the subject:
“Most scholars have concluded that the Establishment Clause was not intended – either at the time of its initial adoption or at passage of the Fourteenth Amendment – to create an individual right. Jonathan P. Brose, In Birmingham They Love the Governor: Why the Fourteenth Amendment Does Not Incorporate the Establishment Clause, 24 OHIO N.U. L. REV. 1 (1998); Steven D. Smith, FOREORDAINED FAILURE(1995); Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 NW. U. L. REV. 1113, 1135–42 (1988); Gerard V. Bradley, CHURCH- STATE RELATIONSHIPS IN AMERICA 9–10, 95–96 (1987); Daniel L. Dreisbach, REAL THREAT AND MERESHADOW 89–96 (1987); Joseph M. Snee, Religious Disestablishment and the Fourteenth Amendment, 1954 WASH U.L. Q. 371 (1954); Edward S. Corwin, The Supreme Court as National School Board, 14 LAW & CONTEMP. PROBS. 3 (1949). But see Frederick Mark Gedicks, Incorporation of the Establishment Clause Against the States: A Logical, Textual, and Historical Account, 88 IND. L. J. 669 (2013) (arguing that prohibition of establishment is intrinsically linked to the individual right to be free of establishment which became applicable to the states through passage of the Fourteenth Amendment).”
Professor Michael McConnell, who we cited earlier, has also questioned incorporation. He is one of the most preeminent scholars on the religion clauses, is a former federal judge and has been mentioned for the Supreme Court. As recently as 2014, Justice Clarence Thomas said that the Establishment Clause is probably best understood as a “federalism” provision – one that was intended to limit the federal government and not the type of individual right that can be incorporated.
If leading scholars and a member of the United States Supreme Court have questioned incorporation, then it is a position that serious people have entertained and is not a “fringe” view. It is grounded in an originalist view of the Constitution and has been supported by careful scholarship. That it is a minority view does not make it “radical.”
Second, it should be noted that the Wisconsin Supreme Court has nothing to do with whether the Establishment Clause should be incorporated. All seven justices could conclude incorporation of the federal Establishment Clause is wrong and they would still have to apply the federal Establishment Clause. Only the U.S. Supreme Court can change that.
Finally, almost all – if not all – state constitutions have their own disestablishment provisions. For example, Art. I, sec. 18 of the Wisconsin Constitution says that the state shall not permit “any preference be given by law to any religious establishments or modes of worship.” If the US Supreme Court were to abandon incorporation, the Wisconsin Supreme Court would have to apply this state constitutional provision. Even states like Mississippi and Alabama, often cited as places that would “establish” Christianity, have such provisions.
Last week I discussed this issue on a panel at UW-Eau Claire. I said that it is unlikely that any state would or could establish a church. What would happen is that various state courts would adopt differing doctrines regarding the relationship between church and state. Given that the U.S. Supreme Court has been unable to develop a coherent and consistent set of rules on the subject, maybe having state supreme courts operate as fifty laboratories building doctrine that fits their individual states wouldn’t be bad thing. In any event, the issue, like most everything that has been brought up in this campaign, has little to do with who should be elected to the state supreme court.
Rick Esenberg is President and General Counsel for the Wisconsin Institute for Law & Liberty.