Religious Freedom, Nonpreferentialism, and Establishment

I fully endorse Amanda Marcotte‘s thoughts on the matter, but to make things more boring allow me to make a doctrinal argument about the appalling 4th Circuit ruling. Obviously, as Marcotte notes, the Establishment Clause can be interpreted in several plausible ways, but this goes well beyond what could be considered a reasonable reading. Let’s look at the reading of the First Amendment made by one radical secularist:

It would seem from this evidence that the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations.

This comes from William Rehnquist’s famous dissent in Wallace v. Jaffree, in which he made an originalist argument against reading the 1st Amendment as requiring a separation of church and state. As an alternative, he advocated a theory known as “nonpreferentialism”: the state can prefer religion to non-religion and provide funding to religious organizations, as long as it does not discriminate among religions. I don’t agree with Rehnquist’s theory, of course, but it’s plausible.

But Wilkinson’s opinion stretches nonpreferentialism beyond any shred plausibility. His repeated assertions that the state’s action was “non-sectarian” is ludicrous; preferring Christianity to other religions is clearly sectarian. (He also attempts to argue that what should be at issue is the content of the speech rather than the speech giver; but, evidently, if this were true there would be no problem with a “nonsectarian” invocation delivered by a Wiccan. The state’s actions render Wilkinson’s interpretation of them plainly illogical.) In addition, Wilkinson has to admit that the state’s action is unconstitutional if the Supreme Court’s primary Establishment clause holding controls; exploiting a loophole, he relies on Marsh v. Chambers, which allowed Nebraska to use only one chaplain to give legislative invocations as long as he was not paid with state funds. This inconsistency is the Supreme Court’s fault, not the 4th Circuit’s, but there’s no principled reason for treating legislative invocations differently than other church/state entanglements. I could be persuaded that nonpreferentialism may be acceptable in cases where no state expenditures are involved, but the state did in this case goes well beyond even the nonpreferentialist theory.

A final note: Wilkinson is, as many of you know, a prime candidate for a SC appointment, and the 4th Circuit the country’s foremost laboratory of wingnut jurisprudence. So, in other words, it’s possible that Bush will replace Rehnquist with someone significantly more reactionary. If that doesn’t chill you to the bone, I don’t know what will…