The Establishment Clause: An Interview with Judge Guido Calabresi

By Marie Griffith | March 27, 2014

(Washington University in St. Louis)

(Washington University in St. Louis)

On February 27, Judge Guido Calabresi visited Washington University in St. Louis to deliver the lecture, “What about the Establishment Clause?” The program was a joint event between the John C. Danforth Center on Religion & Politics and the Washington University School of Law.

Calabresi was appointed United States Circuit Judge in 1994. Prior to his appointment, he was Dean of Yale Law School, where he began teaching in 1959 and where he is currently the Sterling Professor Emeritus of Law and Professorial Lecturer in Law. He has been awarded some forty honorary degrees from universities in the United States and abroad, and is the author of four books and more than one hundred articles on law and related subjects.

Calabresi sat down with R&P Editor and Center Director Marie Griffith for an interview. Judge Calabresi’s interview was given in conjunction with a scholarly lecture that he gave at the John C. Danforth Center on Religion & Politics of Washington University in St. Louis. The lecture and interview were part of the academic program of the John C. Danforth Center, and were both made for purposes of legal education. The following transcript has been edited for length and clarity.

R&P: I hope things are going well with your visit so far.

GC: Wonderful. Could not be better.

R&P: We’re honored to have you here. I thought we’d start with the present and then we can go back to the past. I have to ask you, of course, about the case Town of Greece v. Galloway, which is in all of the news, and I know it’s the first Establishment Clause case to go to the Supreme Court in many years.

GC: In many years. It’s a very interesting case. And it’s an interesting panel because Jerry Lynch is on it, and he is a very smart, moderate judge, top of the class at Columbia, and Dick Wesley, the presider, describes himself as the most conservative man in upstate New York. He was a Pataki appointment to the New York Court of Appeals and then came to our court and is a wonderful judge. He says that he pays a great deal of attention to what people say in the post office in Livonia, New York; very much at one with people in small towns. What we faced first was the question of whether beginning town meetings with prayer was allowed. Much of the press on this case acted as if our answer was no; our case says the opposite. It says absolutely! What we are asking is: how can you do that without defining a town as being Christian, Judeo-Christian, Abrahamic? And that is a very difficult issue.

Judge Wilkinson, Harvie Wilkinson of the Fourth Circuit, said—and, interestingly, caused no fuss at all—you can only do it if a prayer is non-sectarian. We took the position that a non-sectarian prayer is either a contradiction in terms or is an establishment. It is an establishment of the “okay” religions. Of “what we are all agreed on.” What we wanted to do was to find a way of allowing people to pray without having a town define itself as Christian—which was the claim about this case. But, keep in mind that, in our circuit, we also have Kiryas Joel, a town that wants to define itself as Satmar, a particular sect of the Jewish faith. In other words, we have many forms of the desire for self-definition, of the desire to say, in religious terms, “We are something.” What we came up with was the notion that a town can do anything it wants so long as it is open to every religion and non-religion. There can be prayer, and it can be sectarian, so long as it isn’t insulting to others. But it can specifically have prayers that say: “this is the essence of what my religion is.” A town can do this so long as it lets, and has, everyone—every faith and non-faith—do it. But that means also going out and making sure that it’s not just the people in the town. And this is one of the difficult things because the town’s position was, “Well, we asked everybody in town.” But of course, “everybody in town” may well represent what that town is in religious terms. If you had asked everybody in town in New Haven at a certain time, everybody was Congregational. That is the essence of an establishment. What we tried to do was to allow prayer and yet not permit a town to define itself as being of “a particular religion.”

Now, I would not be surprised if the Supreme Court reversed us, for any number of reasons. And that would be too bad. I think the justice on the Supreme Court who is closest to our point of view is Justice Breyer. The position he has taken in Ten Commandments and Cross cases is to ask whether the challenged symbol self-defines in a way that excludes. And the two things are always related: does it self-define and does it exclude somebody else by doing that? Does it say: “We are this, you can come, but you’re second-class”?

The closest question in our case is whether we were correct to find as a matter of law, that this town was self-defining. That’s a factual question, and one could say that we should have sent it back to the district court. I think the facts as to self-defining were mighty strong, strong enough so that we could find as we did. But it would be understandable if one were to say that the structure which we used—that one can pray, but one can’t self-define, and one can’t exclude, and that means one has to bring people in so that what a town is doing is open to all—is okay as a statement of the law, but that the findings of facts have to be more local and more locally determined than we permitted. I don’t care very strongly one way or the other about this point. We felt that way about the facts of the case before us, and so we decided as we did, but one could read the facts differently.

In all this, it may be that one of the things that shaped my views was growing up in New Haven, which was then, in some ways, a totally Congregational town. There wasn’t a Presbyterian church in New Haven until after the Second World War because the two great Calvinist sects had divided the market. From New York north and east was Congregational, from New York south and west was Presbyterian. And all of [my wife] Anne’s relatives, her mother’s side from Minnesota, would come to Yale and become Congregational, and then go back to Minnesota, and become Presbyterian again. So growing up in New Haven, I had a strong sense of what it means for people to self-define.

I also grew up seeing a remarkable example of the opposite: the Grove Street cemetery, the ancient New Haven cemetery, which is right next to the law school. James Hillhouse bought a farm in the eighteenth century or early nineteenth century—Hillhouse was one of the first strong abolitionists; he was a senator, treasurer of the university, and an amazing person—to make a cemetery and take the graves off the New Haven green. And it is said, I can’t tell if it’s true, but the legend is, that he wanted this cemetery to be open to everybody—that is, he wanted people to feel that it was open to everybody—yet, at the same time he wanted to allow people to define themselves religiously. So he did two things: first he wanted to have a symbol of immortality, but he didn’t want any symbol that would say, “This is our place.” And, if you look at the Grove Street cemetery, you see an odd “sun” symbol and you realize that the architecture of the entrance gate is unusual. The “sun” is an Egyptian symbol of immortality and the gate is neo-Egyptian. Because there were no Egyptians in New Haven at the time, this said anybody can come. Second, he made the cemetery have individual family plots owned in fee. This meant that the cemetery did not tell you what you could do or could not do on your plot. So you have, from the beginning, the Pintos, Portuguese Jews, buried there with Stars of David. You have very large crosses and “high” church symbols, which some families, like the Trowbridges, wanted. And you even have one character who put in two sphinxes. In other words, in your own place you could define yourself religiously, but as a unit the cemetery was open to everybody. And that was in the back of my mind when I was writing Town of Greece. 

R&P: That’s fascinating. You mentioned people of no faith being included in this, the atheists who are very active now. I wonder, going back to the point you raised a minute ago, is there such a thing as non-sectarian prayer? How do you include the folks who are upset?

GC: You cannot have a non-sectarian prayer. It is a prayer of what I call “banquet religions,” those religions that are sufficiently okay, so that at a banquet open to all, no one religion feels upset by what that particular minister or priest or rabbi says. That is what is non-sectarian, and it has become a kind of establishment. And then the question becomes, how do you deal with secularists? Genuine secularists? The history of secularists, and secularism in this county is both odd and interesting. Let’s go back to the beginning.

In the eighteenth century, the First Amendment, at a national level, was amazing in its egalitarianism. It said there are no “we” religions, there are no “they” religions, all are the same. There is no affirmative action and Congress must keep out. Why? Because there are no “theys” who have to be brought in. Contrast with this the language of the Fourteenth Amendment: People who were not people, now, are not only people but are equal. And Congress can make laws to see to it that they are treated equally! This is a very different approach towards equality from that which the First Amendment took toward religion.

But, actually, very early, a form of affirmative action did occur. Towards whom? Towards secularists. Why? Because, in fact, at that time they were the only “theys.” People might be theists, they might be something else, but very, very few were genuine secularists or non-believers. Because “belief” was the “we,” there was affirmative action towards the “they,” “non-belief.” What has happened, over the centuries, is that these “theys” have become as much “we” as anyone else. And so it shouldn’t be surprising that, “do not treat secularism better than religion,” has become (and especially recently in court opinions) a strong and dominant argument. The old affirmative action is still there, to some extent. The square in front of our courthouse is called Tom Paine Square. If it were called Aquinas or Maimonides or Calvin Square, there’d be a fuss. So it is still there to some extent. But we are understanding, correctly, that now affirmative action for secularism is no longer needed and that non-belief should now be treaded in the same was as all the different beliefs.

The problem is that people who are arguing these cases, instead of saying, “All should be treated similarly, because we are no longer a religious nation,” are making the opposite argument. They are saying, “We have a right to this because we are a Christian or Judeo-Christian or Abrahamic nation.” And that’s a loser. Because that’s when the Establishment Clause says, “No.” Somebody like me looks at these cases and this current situation, and says, I am very sympathetic to the notion that separation of church and state, whatever you want to call it, no longer means that secularism gets a leg up. It doesn’t get a leg up because it doesn’t need it anymore, in the way it may have needed it in the beginning. And this is so, not because we are what we no longer, if ever, were: a Christian, etc. nation.

R&P: Going back to Greece v. Galloway, what do you think the court will do?

GC: Well, it’s clear from the oral argument, that this is a hard case for them. What are they going to say? Unless they are prepared to hold that self-definition doesn’t matter so long as the state action doesn’t coerce—which is a position one could take: it doesn’t matter if a town defines itself as of this, that, or the other religion, so long as it doesn’t coerce—it’s a very hard to draw a line.

I am not, myself, prepared to take that position. And again, this is almost for autobiographical reasons. I came to New Haven as a seven-year-old Italian of a family that was very self-important; we were not people who were going to be coerced by anybody; we rather thought that we were better than everybody. After all, “these people were painting themselves blue, when we were already highly civilized.” We came to this town and I went to public school in an area mainly of Yale kids. Almost all the teachers were nice Irish Catholic ladies, yet we began every day with the Lord’s Prayer—Congregational style! This was New Haven, the teachers knew what the establishment was and they knew what they were supposed to do. Now one of the grounds, on the basis of which the Supreme Court banned school prayer, is coercion. That could be right, but again because I was sufficiently self-important, I didn’t feel that anyone was coercing me to do anything. Still I did find the prayer very odd because it told me in no uncertain terms what this city was religiously, what was New Haven’s establishment—what its self-definition—was. The Supreme Court in Galloway may go on a coercion/non coercion ground. But I think it would be an unfortunate ground.

Let’s turn to the hardest question of all, which is what I’ll be talking about this afternoon: how far down the line does one go with Establishment Clause reasoning? At the national level, at the state level, at a municipal level, at a neighborhood level, at an individual, corporation, company level. To what degree do you allow people to self-define, and can one do this in a way that doesn’t exclude others? The Arizona law is an example of that issue.

R&P: I wanted to ask you about that too, so since you’ve mentioned it, all of the religious liberty arguments that are out there now, some of them being made by very powerful institutions. What are your thoughts on these cases?

GC: I have to be careful because I don’t want to put myself in a position that would cause me to recuse myself in such cases. On the other hand, what I think I can say is that you have a trade-off between the right of individuals and churches to define themselves and the discriminatory effect that self-definition has on others. After all, while the nation may not define itself as Judeo-Christian, and a state may not any longer define itself as Congregational, an individual or a church certainly has the right to define itself in the way that it is. But, to what extent can an organization: an individual, a church itself, a church­related corporation or a corporation which is owned by individuals—these are different—define itself in ways that exclude others, that—in effect—discriminate against them?

The first thing I think that you have to ask is how much to the core of that organization does that self-definition go. So when you’re talking about a church itself, you’re talking about something different from when you’re talking about a corporation. And when you’re talking about a corporation, that’s something different from an individual. The next questions are: whom are you excluding and how dramatically are you excluding them? Are you excluding a group that has been classically discriminated against? We wouldn’t conceive of an Arizona-type law that said people have the right—if their religion says that blacks are inferior—not to deal with blacks. So, the question is how much is the “excluded” group a group that our Constitution says cannot be maltreated. And then one must ask: how much of an exclusion, a maltreatment, does the self-definitions cause? Go back to Kiryas Joel. It is one thing to create a school district, it is another thing to draw lines, so that within the outlines of those lines people who are of this faith are within an area where they can do certain things on the Sabbath. The latter doesn’t exclude others in the same way the former does. It excludes too—every self-definition excludes—but some self-definitions do so much more than others. The balance is among these three factors: how crucial is the self-definition to the self-definer, whom does it exclude, and how grievously or trivially does it exclude, may well make one case different from another. So I’ve said something which both states my position and I don’t think requires me to recuse myself in any case.

R&P: I just have one last real question. Sarah Barringer Gordon is a friend and colleague of mine.

GC: Absolutely lovely, wonderful person.

R&P: And admires you tremendously. But she’s made an interesting point before that one of our big problems in these cases is that we don’t have a clear legal definition of religion. And until and unless the courts ever have a really clear, bounded thing we can call religion, we’re going to have endless numbers of cases like this. Do you agree with that critique?

GC: Actually, yes and no, there is a problem here. She is of course right: we don’t have a definition. And we see that in the conscientious objection and similar cases where we say, “Well, this is like religion,” or, “This matters to people in the same way that religion does.” But the moment one defines religion, and the stronger the First Amendment protections to religion are, the more those things that are outside the definition are thrown outside of Constitutional protection. And this is a constant danger of the First Amendment. You see it in speech, and especially so for people, like Justice Black, who have a very strong view of the First Amendment: “Speech is absolute, don’t touch it at all.” But then you have things that are not speech, and as to these, the majority can do almost anything.

If you have a clear definition of religion, then what is outside that definition are “cults” and get no protection at all. This says to some people, “What you believe in is outside the Constitution,” and to say that is a very dangerous thing. For, when you say that something people believe in is outside the Constitution, you force people to do one of three things. One: to go in the streets and try to change the Constitution. (Which we’ve seen as to some things, and which I’ll come back to.) Or two: to drop the belief that made them a cult, which is what happened with the Mormons and polygamy. (This, however, is very dangerous because those who have been forced to abandon their belief, are then quite understandably likely to say, “When we’re in the majority, we can impose our view on others. You told us we couldn’t do certain things, then, when we think that there are some things that others do that are immoral, we can do the same.”) Or, finally, you get some “believers” who become outlaws. (And every five or six years The New York Times will write an article about these “horrible” people who are living somewhere or another and doing this and that which is wrong and “cultish.”)

It’s too late to put that genie back in the bottle now, way, way too late. We can’t do anything about it. And I understand what Sarah is saying. But when you say you are a cult, not a religion, you’re saying, “You don’t have any protection,” and that is very dangerous. Think of Lincoln saying, “A country cannot live half slave and half free.” That wasn’t true! It lived a hundred years that way. What made it impossible to continue being that way was when the South through Dred Scott was able to say, “We are an all-slave country.” At that point, the North, which previously had treated the abolitionists as right, but repulsive, said, “Oh, no, if it’s going to be all one way, it’s going to be our way.” Now I’m glad of this, because there are some things that are not acceptable, like slavery, like segregation. But one has to be careful when one rules out something. It is easier to be broader if you don’t give as much protection, and this is the trade-off. If you really want to give protection to religion, you’re going to have to define it. Sarah’s right. But don’t forget the dangers of it.

R&P: Thank you so much, Judge Calabresi. 

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