NOTES A POLITICAL PROCESS THEORY OF JUDICIAL REVIEW UNDER THE RELIGION CLAUSES CARLTON MORSE∗ “[One] explanation for the Court’s deviation from political process theory inheres in another quasi-psychological need that has manifested itself in constitutional law since at least Marbury v. Madison: the notion that the legal system should provide remedies for all serious wrongs. The problem with this expectation in the constitutional law context is that it ignores the relative institutional competencies that should inform judicial review.”1 “[I]nstitutions of religion should be unfettered to make their maximum contribution to the public interest.”2 TABLE OF CONTENTS I. INTRODUCTION.................................................................................795 II. JOHN HART ELY’S PARTICIPATION-ORIENTED, REPRESENTATION-REINFORCING THEORY OF JUDICIAL REVIEW......................................................................800 ∗ Class of 2007, University of Southern California Gould School of Law; B.A. 2003, Azusa Pacific University. This note is dedicated to my parents, David and Muriel Morse, for their faithful attention to the wisdom of Proverbs 22:6. I owe sincere thanks to Professor Nomi Stolzenberg for her fine teaching, invaluable insights, and generous encouragement throughout this project. I am also indebted to Professors Danielle Keats Citron and Peter Danchin for helpful comments on earlier drafts. 1. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747, 824 (1991) (footnotes omitted). 2. PETER L. BERGER & RICHARD JOHN NEUHAUS, TO EMPOWER PEOPLE: THE ROLE OF MEDIATING STRUCTURES IN PUBLIC POLICY 33 (1977). 793 794 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 80:793 III. PROCESS THEORY AND RELIGION TODAY: A DIAGNOSIS WITHOUT A CURE................................................804 A. SUFFERING JUDICIAL PREPOSSESSIONS: TODAY’S SUBSTANTIVE RELIGION CLAUSE JURISPRUDENCE.................806 B. THE IDEOLOGICAL LIMITATIONS OF PROCESS THEORY............811 1. What Process Theory Has Said About Religion.................811 2. Process Theory: Bootstrapped by Modern Liberalism .......813 a. Defining Liberalism ......................................................813 b. Liberalism’s Influence on Process Theory ...................817 IV. RETHINKING PROCESS THEORY: LESSONS FROM THE CIVIC REPUBLICAN REVIVAL.................................................819 A. LIBERALISM’S COMPETITOR: CIVIC REPUBLICANISM ..............819 B. LESSONS FROM THE CIVIC REPUBLICAN REVIVAL ...................820 1. The Undervalued Contributions of Mediating Institutions .........................................................................823 2. Mediating Institutions and the Civic Republican Ideal ......824 a. Mediating Institutions Link Individuals with Others and Facilitate the Creation of Personal Identity...........826 b. Mediating Institutions Link Individuals with Values, Sources of Meaning, and Moral Authority ..................827 c. Mediating Institutions Help Define Social Norms and Orient Those Norms Toward the Common Good Through Competition in the Marketplace of Ideas .............................................................................828 d. Mediating Institutions Link Individuals with Democratic Power Centers ..........................................830 e. Mediating Institutions Perform Essential Checking Functions Against the State’s Normative Authority ....832 3. The Church as the Quintessential Mediating Institution ....833 V. APPLYING PROCESS THEORY TO THE RELIGION CLAUSES.......................................................................................835 A. PROCESS-ORIENTED FREE EXERCISE RIGHTS ...........................836 1. Process Theory’s Preference for Strong Free Exercise Protections .........................................................................840 2. Distinguishing Impediments to Religious Duty from Other Inconveniences ........................................................842 B. A PROCESS-ORIENTED THEORY OF “ESTABLISHMENT OF RELIGION” ...............................................................................846 1. Preventing Coercion of the Individual Believer or Religious Institution...........................................................848 2. Preventing the Fusion of Religion and Government ..........852 2007] PROCESS THEORY OF RELIGION 795 3. Remedying Religious Favoritism on the Part of the Government .......................................................................859 4. Religious Symbolism in the Public Square ........................861 VI. CONCLUSION ..................................................................................864 I. INTRODUCTION Few areas of constitutional law remain more captive to the subjective whims of judicial preference than the First Amendment’s religion clauses.3 This condition results in part from the Court’s notorious inability to agree on a uniform standard of review under either the Free Exercise or Establishment Clauses.4 This instability matters because, as Justice Scalia notes, “[w]hat distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.”5 As concerns the religion clauses, a stabilizing principle may be found in political process theory, a set of ideas that, while generally familiar to constitutional theory, have yet to be comprehensively applied to either free exercise or establishment controversies. Process theory embraces “[t]he notion that courts should exercise judicial review almost exclusively to protect democracy and guarantee the fairness of legal processes.”6 Conversely, process theory rejects the notion that courts should enforce “substantive” policy preferences that cannot be justified on these “process-oriented” grounds, as they are more properly left 3. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. CONST. amend. I. 4. See Dmitry N. Feofanov, Defining Religion: An Immodest Proposal, 23 HOFSTRA L. REV. 309, 311 (1994) (cataloguing several scholars’ descriptions of current religion clause doctrine, which include “‘doctrinal quagmire,’” “‘inconsistent and unprincipled,’” “‘schizophreni[c],’” “‘a conceptual disaster area,’” and simply, “‘a mess’”) (footnotes omitted). Often, the Court seems to overlook constitutional analysis and simply cites its past decisions. E.g., Van Orden v. Perry, 125 S. Ct. 2854, 2864 (2005) (holding that a Ten Commandments display on the grounds of the Texas State Capitol did not offend the Constitution because it was “a far more passive use of those texts than was the case in Stone [v. Graham, 449 U.S. 39 (1980)]”); Mueller v. Allen, 463 U.S. 388, 393–94 (1983) (“In this case we are asked to decide whether Minnesota’s tax deduction [for expenses associated with private religious education] bears greater resemblance to those types of assistance to parochial schools we have approved, or to those we have struck down.”). 5. McCreary County v. ACLU of Kentucky, 125 S. Ct. 2722, 2751 (2005) (Scalia, J., dissenting). 6. PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 433 (2000). See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980). Ely developed the most comprehensive process theory of judicial review in his influential 1980 work Democracy and Distrust. The process theory discussed throughout this Note is Ely’s formulation. 796 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 80:793 to the vicissitudes of the political branches. Borrowing heavily from the literature of civic republicanism, this Note argues that process theory should be broadened to account for the unique contributions of religion to the political process. This Note further argues that, using process theory, courts should interpret the First Amendment’s religion clauses as process- oriented safeguards for the political contributions of religious faith and institutions. Finally, courts should reject a jurisprudence that employs the religion clauses as vehicles for the enforcement of substantive conceptions of free exercise and disestablishment. Two recent decisions involving public displays of the Ten Commandments demonstrate why today’s substantive interpretations of the religion clauses remain untenable. The first, McCreary County v. ACLU of Kentucky, involved a courthouse display that featured “nine framed documents of equal size, one of [which] set[] out the Ten Commandments” along with “a statement about its historical and legal significance.”7 The second, Van Orden v. Perry, decided on the same day, involved a six-foot statue inscribed with the Ten Commandments that sat among other monuments at the Texas State Capital.8 In McCreary County, the majority applied the Lemon test9 and struck down the Kentucky display for want of a secular purpose, citing the religious fervor that accompanied the display’s creation.10 But seemingly in the next breath, the Van Orden majority declined to apply the Lemon test, declaring that state “promoti[on of] a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”11 Then, upon concluding that it was “far more passive” than those in previous cases, the Court upheld the Texas display without further explanation.12 Besides the fact that two visually similar displays of the Ten Commandments became subject to different standards