Praying for America: The Constitutional Ban on Animus-Based and Theocratic Reasoning in the Establishment, Free Exercise and Equal Protection Clauses

Abstract

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise clauses share a common principle prohibiting state action that is based on “theocratic” reasoning. Drawing on the free-exercise case of Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, I propose the “anti-theocracy principle” to describe the ban on theocratic state reasoning. According to the anti-theocracy principle, state action must meet two requirements. The first, “secular independence” requirement is that in addition to any religious reasons for laws, the state must have secular reasons available that can appeal to non-religious citizens. The second, “equal status” requirement is that state speech or reasoning must respect the equal status of citizens regardless of their race, gender, or sexual orientation. Although I develop and defend the anti-theocracy principle with reference to free exercise jurisprudence, I also argue that the anti-theocracy principle should be made explicit in the Court’s Equal Protection gay rights jurisprudence. Laws restricting gay rights are sometimes motivated by theocratic reasons. But laws discriminating against gays, like laws based in racial animus, lack a legitimate purpose. Having grounded the anti-theocracy principle in two fundamental constitutional provisions, I then extend it to recent controversies over the Establishment of religion. I argue that the anti-theocracy principle rightly constrains state expression, and not just state coercive action. It is therefore a more restrictive account of the Establishment Clause than Justice Kennedy’s “coercion test” from Lee v. Weisman, and it offers a way of clarifying and refining Justice O’Conner’s “endorsement test” from Lynch v. Donnelly.