Supreme Court's Rhetorical Hostility: What Is "Hostile" to Religion Under the Establishment Clause?, The

Brigham Young University Law Review, 2004 by Ravitch, Frank S

I. INTRODUCTION

The use of the term "hostile" to describe the treatment of a person, idea, or entity generally implies that there is some negative intent or feeling involved-that is, that the treatment is actually hostile. Yet when the United States Supreme Court has used that term in connection with government entities' treatment of religion, the Court has failed to adequately explain what it means by "hostility."1 Recent decisions indicate the Court has presumed that the failure of government entities to follow the dictates of formal neutrality is sometimes hostile to religion,2 although the Court has never seriously attempted to justify this characterization. The Supreme Court's use of the term in the Establishment Clause context thus appears to be only rhetorical. If the Court uses a powerful term such as "hostility," however, it should do so only when actual hostility is involved.

The Court's rhetorical use of hostility is consistent with its recent tendency toward formalism in religion clause analysis.3 The problem is that the trend has led to a doctrine that is based on unstated principles. Yet the Court attempts to substantiate this doctrine with different concepts, such as "neutrality" and "hostility," which are mostly rhetorical. In several important contexts, the Court has begun to use bright-line tests that seem to depart from earlier precedent but derive significant support from concepts and terminology that the Court never adequately justifies or explains.4

In cases such as Mitchell v. Helms,5 the Court uses the term "hostility" without ever defining it or connecting it to hostile motives. It seems the Court applies the label of "hostility" to justify a result, but because the Court applies it to situations that may have little to do with "hostility" as commonly understood, the Court's rhetoric may turn into a blunt instrument to cast even mildly separationist doctrine and policies as hostile-and thus violativc of the Court's new formal neutrality principle. This has an Alice-inWonderland-like impact, as Justices use the term "hostility" in situations where there is no hostility, and then, based on that term, find that the government action is not neutral, when the Court's neutrality concept has little to do with neutrality, if neutrality is even possible in this context.6 Interestingly, the Court's use of hostility in its most recent funding decision, Locke v. Davey, suggests a limit to this trend, but the Court's brief discussion of hostility in that case seems to conflict with the use of the same concept in other cases.

Significantly, this Article is not an entry in the long-standing debate over whether separationism and/or secularism are biased against religion.8 While I disagree with those in the debate who automatically equate bias or bad effects with hostility toward religion, this article is not an attempt to either defend or refute the role of separationist principles in the Establishment Clause context. It does, however, suggest that those who equate separationism with bias against religion should stick with the concept of bias (whatever its merits across issues) and use the concept of hostility only when there is evidence of actual hostility as discussed below. Part II of this Article will provide background on the Court's use of the concept of hostility and some of the concerns raised by the Court's approach. Part III will analyze the Court's use of hostility under the Establishment Clause and suggest that the Court has moved toward equating separationist motives with hostility. While this connection may be accurate in some limited contexts, the Court has not seriously attempted to explain it. Part IV will assert that hostility toward religion is a real concern that needs to be addressed but that the lack of formal neutrality is not adequate proof of this hostility.

II. BACKGROUND

In recent years the Court has used the concept of hostility toward religion primarily in cases involving equal access,9 but the concept is also finding its way into the government aid context.10 In both these realms, the Court (or a plurality of Justices) has in essence said that failure to treat religious entities and individuals like all other entities and individuals is hostile toward religion. Thus, the Court seems poised to treat hostility and lack of formal neutrality11 as two sides of the same coin.

I have argued elsewhere that the current Court's notion of formal neutrality is an empty concept because neutrality does not and cannot exist, at least not in the Establishment Clause context.12 In contrast, hostility toward religion can exist, and thus, it is a different kind of concept than neutrality: whereas neutrality makes an untenable universal claim,13 hostility does not. Of course, the fact that hostility can exist does not mean that the Court's use of the concept is accurate-this Article argues that it is not. Inaccuracy in the use of the term "hostility" was less problematic in earlier decisions in which the Court did not connect the term to formal neutrality, although a strong argument can be made that earlier Courts did not take hostility toward religion as seriously as they took religious favoritism.14 Still, the Court has long held that "hostility" toward religion is prohibited by the First Amendment.15 Yet the Court has done a poor job of defining "hostility" and the current Court's choice of definition has little to do with real hostility.16 Since "hostility" has generally served as a tangential rhetorical justification for decisions, this concern has been little explored.