Establishment and Local Government
As you know by now, both the free exercise and non-establishment provisions of the First Amendment originally applied only to the federal government (“Congress shall make no law . . .). Today, both provisions also apply to state and local governments through the Due Process Clause of the Fourteenth Amendment under a doctrine called incorporation. (If you’re unfamiliar with this idea, this video provides a basic overview of incorporation.)
The Supreme Court first applied the Free Exercise Clause to the states in 1940 and the Establishment Clause to the states in 1947. There is little disagreement that the federal Free Exercise Clause properly reaches state and local government. But what about the Establishment Clause? Justice Thomas has argued that “the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.” At this point, Justice Thomas likely has only his own vote for that view (or maybe two, in light of Justice Gorsuch joining his concurrence in Espinoza v. Montana Dept. of Revenue).
But suppose Justice Thomas is right, and that state and local governments can have religious establishments. Consider the implications for state and local government as you read the cases for today. How should religiously homogenous municipalities or neighborhoods be constrained? Are there relevant differences between the federal government and state or local governments that should be recognized by the law?
Today’s cases illustrate how insular and illiberal religious communities exercise their influence. Are these communities, on balance, good for American society?
Insular religious communities aren’t the only communities in tension with democratic practices. In their own ways, gated communities, private universities, and racially segregated neighborhoods all raise similar tensions. For an interesting reflection on these ideas, consider this recent essay by Jeannette Cooperman.
Larkin v. Grendel’s Den, 459 U.S. 116 (1982)
State of Or. v. City of Rajneeshpuram, 598 F. Supp. 1208 (D. Or. 1984)
Just for Fun:
The Rajneeshpuram are the subject of a 2018 Netflix documentary, Wild Wild Country. Here’s the trailer:
Today, the former Rajneeshpuram compound is a camp operated by the Christian ministry, Young Life:
Grendel’s Den is still operating near Harvard:
