美国最高法院大法官金斯伯格（RBG）上周末溘然长逝。在纪念这位女性平权法律倡导者和捍卫者的文章尚存头版、悼念花环尚未褪去的当下，围绕她的继承人的战斗已经在首都华盛顿打响。按照特朗普总统自己的说法，他将在本周内提名一位女性作为最高法院的大法官。

众所周知，由于美国的三权分立，作为司法一翼的最高机构——最高法院在美国宪政体制中的作用在政治极化的当下，作用和角色愈发重要。堕胎权、拥枪权、同性婚姻、乃至大选计票的介入，都令最高法院的光谱倾向成为必争之地。

简单而言，目前在金斯伯格去世前，最高法院的法官构成为五名保守派大法官、四名自由派大法官（实际上，这种简单区分并不能很好解释很多大法官的判决意见。比如最近保守派大法官戈萨奇在一些重要裁决中的自由派倾向投票。更严谨的划分可能是大法官对于宪法条文的解释——所谓条文派，即忠于美国国父们草拟的宪法条文，不做扩展性解释和阐述；以及认为三个世纪前的宪法条款仅仅是裁决根据的起点，最终判定应该考虑时代的变迁等等作出扩展性的解释）。如果特朗普提名其任上的第三名保守派法官，加上目前参议院53:47的共和党优势，很有可能彻底打破最高法院的平衡，形成6:3的保守派绝对多数。而这对民主党人所珍视的堕胎权、奥巴马医改法案等等都可能造成致命的打击。

参议院民主党人因此祭出种种手段来阻止特朗普的提名人选。首先试图援引2016年参议院共和党阻挠奥巴马提名温和派加兰德法官的做法，指出共和党当时以距离大选太近为由阻挠提名听证会的说辞，同样适用于当下不到两个月的大选阶段。不过据统计，在美国历史中，在选举年总共出现过29次最高法院空缺大法官的情况。而不管是否参议院与总统是否出自同一政党，作为总统无一例外都利用这一空缺提名本党属意的大法官候选人。而只要立法机构和行政机关都属于同一政党，总统的最高法院提名都无一例外获得通过。

从这个角度讲，尽管距离11月3日的总统大选不到两个月，依靠共和党在参议院的简单多数，特朗普任内的第三位保守派法官获得任命的可能性很大。民主党方面所能期待的策略包括通过阻挠议事程序（ filibuster）、说服摇摆的共和党参议员（需要说服至少四名共和党联邦参议员反对提名人选）、提出本届国会新的议程（比如第二次弹劾特朗普）来挤占参议院的会期，甚至威胁一旦在11月3日的国会改选中过半，将启动将9名大法官增加到11名的极端措施，以维持政治光谱的平衡。

不过从目前情况看，这些措施可能都无法阻挡此次共和党人政治化法官选择的强烈动机。根据最新的民调，尽管民调有所回升，特朗普总体落后于民主党参选人拜登。而面对新冠疫情、经济下滑以及种族矛盾三重危机下的特朗普，通过提名并最终确认大法官，将是其激发基本盘、创造为数不多的优势议题的不二选项。随着种族矛盾、司法正义的话题愈发主导选情，诉诸白人新教徒的身份政治，不仅可以提高基本盘的投票率，同时也对部分愈发担心美国“变色”的摇摆选民颇有吸引力。金斯伯格在选情的离世，不啻给选情告急的特朗普的一张“王牌”（ Trump card）。

目前最有可能获得特朗普提名的、就是笔者曾经求学的位于美国印第安纳州的圣母大学（University of Notre Dame）的前法学院教授巴内特（Amy Coney Barrett）。作为有着保守派旗帜的大法官斯卡利亚法律助手的巴内特，其保守立场为大家所熟知。而在捍卫斯卡利亚条文派立场时，巴内特曾经表示，斯卡利亚也曾作出违背自身政治立场的裁决意见，而这些看似对自我的否定，恰恰证明他忠于宪法文本的裁决原则，而不是简单从自身立场作出判断。

在政治之外，不管是自由派还是保守派法官，他们的法律素养都令人高山仰止。他们往往有着美国最受尊敬的九个人的称号。

我因此想到自己20年前的在圣母读书时，“莽撞”地选择了一名圣母法学院与政治学系共同开的“比较宪法学”——对比以德国《基本法》为核心的大陆法系和美国宪法为核心的英美法系在诸多社会政治问题上的判例 。此去经年，但从这门课学到的，确是我在圣母求学经历最深刻的印象。也更加让我对此次围绕大法官人选政争以外、候选人本身法律素养的景仰。

文中最后，附上我当年选修课程写的期末论文：比较德国《基本法》和美国宪法关于政府-教会中立性原则的判决异同。

Evolution of the Principle of Neutrality: A Comparison between the German and American Jurisprudence

Introduction

What are the criteria for testing church-state relations in postwar historical context?  Throughout the evolution of the Establishment Clause jurisprudence, which new forms have the postwar jurisprudence test taken on?  What variation has the basic principle of “neutrality” that has guided Establishment Clause jurisprudence ever since Everson v. Board of Education experienced?  These questions stand out in postwar Western countries’ jurisdiction with respect to the Establishment Clause, with these countries more or less witnessing sweeping demographic changes and unprecedented what is called “the growth of the affirmative state,” i.e., the expansion of the state in social life and the corollary of state encroachment on traditionally private realm. Jefferson’s metaphor of “wall of separation” falls apart and the boundary between public and private realms is gradually blurred.  Under such circumstances, it is difficult to maintain the fiction that requiring government to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality.  Accordingly, it seems somewhat irrelevant and outmoded to structure constitutional analysis as regards the Establishment Clause primarily in terms of appropriate spheres of state power, which was evidenced in the jurisdiction of Reynolds v. United States.

This article attempts to address these questions and keeps track of the evolution of the Establishment Clause test.  As such, the jurisprudence evolution in Germany and the United States will be singled out as exemplary cases.  The rational is two fold.  In the first place, World War II is an important watershed in both countries Establishment Clause jurisprudence.  As for Germany, the war catalyzed the birth of the Basic Law, which was not only a reflection of the lesson from centuries’ church-state arrangements, but even more significantly of the size and nature of the state that modern constitutional law constrains.  In the same token, although religious liberty and church-state relations could be traced to the adoption of the First Amendment, it was not until 1940 that the Supreme Court expressly held that the free exercise clause was applicable to the states as a result of incorporation in Fourteenth Amendment due process.  Thus, the bulk of case law construing the United Sates religion clauses is not appreciably older than the Basic Law. Taken together, the end of World War II served as a milestone in the course of both countries’ religion jurisprudence development.  The second reason is that the both countries’ law systems are worthy of reference in their own right, the former being characteristic of continental law, and the latter being the representative of Anglo-American law.

The Test Evolution in Germany

Approaches to church-state relations include the “endorsement” test that has prevailed in American cases and what is termed “coercion” test.  The “endorsement” test teaches that the government should endeavor to maintain a position of strict impartiality among different religious belief-systems and, most certainly, must not endorse any particular religion as the one true faith.  The “endorsement” test resulted mainly from the explanation for the Establishment Clause by the Framer of the U.S. Constitution.  As Justice Blackmun, with whom Justice Stevens and Justice O’Connor joined, put it in hisconcurring opinion with the majority, 

“The mixing of government and religion can be a threat to a free government, even if no one is forced to participate.  When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs.  When the government arrogates to itself a role in religious affairs, it abandons its obligation as a guarantor of democracy.  Democracy requires the nourishment of dialog and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation…  Likewise, we have recognized that “[r]eligion flourishes in great purity…  When the government favors a particular religion or sect, the disadvantages to all others is obvious, but even the favored religion may fear being taint[ed]… with a corrosive secularism.  The favored religion may be compromised as political figures reshape the religion’s beliefs for their own purposes; it may be reformed as government largesse brings government regulation.  Keeping religion in the hands of private groups minimizes state intrusion on religion choice, and best enables each religion to ‘flourishing according to zeal of its adherents and the appeal of its dogma.”

As a result of the reasoning above, it is unconstitutional for government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens are coerced to conform.  This is the essence of the “endorsement” test, by which the requirement of neutrality is interpreted.  In the Classroom Crucifix II case, the majority relied upon the structural requirement of “neutrality” and began by distinguishing sharply between the exercise of religious beliefs by the government and private religious expression, a point that strikes at the heart of the positive freedom to express one’s views through the government.  Here what is termed “structural requirement of ‘neutrality’” amounts to the “endorsement” test of neutrality.

As Rawls acknowledges, however, that the state cannot be completely neutral toward all religions in that some religions are antithetical to the requirements of liberalism, and the liberal state necessarily must reject as erroneous any religion that contradicts the basic tenets of liberalism itself.  In addition, the aforementioned postwar trend of state expansion leaves no residual buffer zone between the domain of individual rights and the domain of state power.  The modern administrative state seems to occupy all available space unless it is expressly excluded by individual rights.  The state involvement or entanglement with private enclaves is so pervasive that one of the three cumulative criteria developed by the American Supreme Court is that the statute must not foster an excessive government entanglement with religion (emphasis added).  Though this is the case in the U.S., sozialstaatlichkeit has become an established ideal in Germany.  Given the fading relevancy of the “endorsement” test, some have suggested the so-called “coercion” test as a replacement.  According to the test, as long as the statute does nothing to compel anyone to support this official religion by attendance, or financial support, or some other means, the statute cannot be categorized as unconstitutional.  This test is especially relevant and appropriate in the light of the history and status quo of Germany.  The institutional relationships between the German states and religious organizations, among the religious institutions standing out the large Protestant and Catholic churches, have been an indispensable aspect of German social life.  Even during the prevalence of National Socialism, such intimate and special church-state relationships did not be challenged or endangered?  Despite the fact that Article 4 (1), Article 3 (3), Article 33 (1) and Article 140 of the Basic Law mandate the state to remain neutral in matters of faith and religion, the institutional relationships rooted in German history and culture sharply undercut any argument that the prohibition of a state church in the Basic Law means that government and religion must remain “separate.” The traditional model of church-state separation (American model) is inconsistent with the state’s obligation to neutrality.  In other words, neutrality does not mean a sanitized boundary between the state and the church in the German case.  As observed in the School Prayer cases, one disagreement among the Justices centered on what threat or pressure made the situation created by the government unconstitutional. Special emphasis on voluntary participation served as a crucial point in adjudicating the school prayer case.  As the Federal Court noted, permitting this religious element in (compulsory) interdenominational schools with the safeguard of voluntary participation still remains within the scope of creative freedom granted to… (emphasis added)

Beyond the two tests of “endorsement” and “coercion,” the German Establishment Clause jurisprudence develops another complementary test, which finds its basis on the German unusual church-state relations.  This creative approach, with private religious choice at its core, is a particularly influential approach to the religion clauses.  According to Professor McConnell and Laycock, this position’s “underlying principle” holds that “governmental action should have the minimum possible effect on religion.” Government violates the Free Exercise Clause by “inhibiting religious practice,” and it violates the Establishment Clause “by forcing or inducing… contrary religious practices.” The reasoning from private religious choice holds that the government many not exclude religious speech from a public forum simply because it is religious, nor may it deny otherwise qualified religious groups access to government funding.  If the government excludes religious groups from public programs and fora, it creates incentives for such groups to secularize; through these incentives, the government distorts private religious decision-making and thus violates the Constitution.  As a result of the test, government religious speech that reflects not merely the practices, but also advances religious preferences of private constituents has a particular legitimacy against the claim that it violates the rights of others to avoid contact with that speech.  Put another way, government religious speech and funding can pass the muster of the principle of nonestablishment as long as they extend only to considering the religious interests of everyone and to looking for a solution that best balances the rights of all.  The consideration and weighing of private religious choice of everyone embodies the protection of the Basic Law of both negative and positive freedoms, that is, Article 4 contains not just an individual “defensive right” (Abwehrrecht) against the state, but also requires that the state secure room for the active confirmation and development of religious conviction, particularly where the state has assumed responsibility for a particular area of life.  As such, denying the government latitude to engage in religious speech in areas of pervasive government control, the Federal Court reasoned, improperly refuses religion a place in public life: Removing all ideological and religious references from the school would not resolve the ideological conflict, but would disadvantage those who desire a Christian education for their children and would compel them to send their children to a lay school that largely corresponds to the plaintiff’s world view.”

German Cases

Somewhat weird, we will trace the Establishment Clause jurisprudence evolution through not strict chronicles.  That is to say, the Classroom Crucifix II case (1995) is to be presented first, since the classical case deviates to a great extent from the Federal Court earlier emphasis on positive religious freedoms in the school and is usually deemed an incoherent approach with respect to the Establishment jurisdiction.

A. The Classroom Crucifix Case (1995)

From the outset, the judgment of the First Senate pitted Article 4 against Article 7 without paying too much attention to possible concordance.  In other words, the Court bluntly characterized the interest conflict as one between the state on the one hand and the individuals on the other.  According to the Court, Article 4 (1) does not simply command the state to refrain from interfering in the faith commitments of individuals or religious communities.  It also obliges the state to secure for them a realm of freedom in which they can realize their personalities within an ideological and religious context…  Article 4 (1), however, grants neither to the individual nor to religious communities the right to have their faith commitments supported by the state.  On the contrary, freedom of faith as guaranteed by Article 4 (1) of the Basic Law requires the state to remain neutral in matters of faith and religion.  Although, in the Court’s view, in a society that tolerates a wide variety of faith commitments, the individual clearly has no right to be spared exposure to quaint religious manifestations…, given the context of compulsory education (Article 7 (1) of the Basic Law confers exclusive jurisdiction over educational matters on the state), the presence of crosses in classrooms amounts to state-enforced “learning under the cross,” with no possibility to avoid seeing it.  Thus, the situation is different in public school case.  The principle of separation reflects to a considerable degree structuralneutrality, with its practical bias toward secularism or the protection of negative freedom.  The Court recognized this tendency but endeavored to justify it.  “The resulting conflict cannot be resolved on the basis of majority rule since the constitutional right to freedom of faith is particularly to protect the rights of religious minorities.”  

The retreat of the Court from its earlier emphasis on positive religious freedoms in the school reflects its concern over the problem that where the government’s own opinions on religious truth and values are strong (this point is remarkable in Bavaria), it is too difficult to create public space available to challenge those dominant opinions.  Or, stated another way, the Court did not hold it true that in confirming Christianity, the state is merely acknowledging the West’s cultural and educational indebtedness to Christianity.  Conversely, the Court suspected that the government’s motive was to advance, as opposed to mirroring private choices, one religion and manipulate private choices in favor of it.  Besides, the resort to the “endorsement” test in determining the principle of neutrality mirrors the Court’s calculation of local nature of constitutional adjudication.  Though individual states enjoy a large measure of discretion in determining the nature and the organization of elementary schools, the overwhelming Christian background culture in Bavaria may well cast a shadow that the State imposes its majority faith commitments on religious minorities through the display of the cross that symbolizes the core of the Christian faith.

B. The Interdenominational School Case (1975)

The Court’s reasoning in the 1975 case stands in sharp contrast with its counterpart in twenty years.  Notwithstanding the fact that the Court also stressed the inevitable tension between Article 7 and Article 4, here it interpreted the establishment ofthe form of the school entitled to the state as a reflection of constituent religious preferences, that is, it was actually parents’ wish for a Christian education that entered into conflict with that calling for different educations than Christianity.  The Court thus transformed the conflict into one between two groups of individuals exercising their rights, away from a conflict between the state and the individuals.  Since the state’s decision with respect to the ideological and denominational character of state schools turns to a significant degree on its consideration of the major constituent religious preferences, any denying of the existing educational system would necessarily weight the scale toward the countervailing basic rights of persons with different views.  This is equally not fair.  The Court therefore delivered its viewpoints as follows:

When interpreting these provisions, one must see them together and harmonize them with one another because only the “concordance” of the legal values protected in both articles does justice to the decision of the Basic Law.  None of there norms and principles takes precedence over the other a priori, even though the individual aspects differ in significance and internal weight.  One can resolve this [problem] only by assessing the conflicting interests through a balancing [process] and categorizing the constitutional aspects previously discussed.  At the same time one must take into consideration the constitutional commandment of tolerance (compare Article 3 (3), Article 33 (3) of the Basic Law) as well as the safeguarding of state independence in matters of school organization.  Further, one must keep in mind that individual states may pass differing regulations due to differences in school traditions, the denominational composition of the population, and its religious roots.

In order to comply with the principle of nonestablishment and ensure the state’s neutrality, the individual states must work out the political process to reconcile competing private interests in giving children religious instruction.  Specifically, the private religious preferences embodied in the selection of the form of the local public school by the statemust be compatible as far as possible with those private religious preferences for otherwise permissible course of action in fulfilling the religious upbringing of their children.  In such context in which the government religious speech is inexorably conflated with certain private religious choice, it seems improper and inappropriate to continue to apply the “endorsement” test to illustrate the requirement of neutrality. Additionally, because Article 6 (2) [1] does not give parents the right to select the form of the local public school, it is the state that controls the public space, the school.  It is almost impossible to separate the government influence from the school affairs.  If such is the case, more attention should be paid to avoiding or reducing the impact on parents’ constitutional rights of compelling them to expose their school-age children to an education which does not correspond to their own ideas of religion and ideology.  At the same time, the legislature must choose a type of school which, insofar as it can influence children’s decisions concerning faith and conscience, contains only a minimum of coercive elements.  As an alternative of the “private religious choice” test, therefore, the “coercion” test holds in the interdenominational school case, while the “endorsement” test is not applicable.

C. The School Prayer Case (1979)

In this case, the Federal Constitutional Court applied both the “coercion” test and “private religious choice” test in its justification of school prayer.  In applying the “coercion” test, the Court executed the following reasoning:

If the state, in the sense described, permits school prayer outside religion classes as a religious exercise and as a “school event,” then certainly it is encouraging belief in Christianity and thus encouraging a religious element in the school which exceeds religious references flowing from the recognition of the formative factor of Christianity upon culture and education…  Nonetheless, permitting this religious element in (compulsory) interdenominational schools with the safeguard of voluntary participation still remains within the scope of creative freedom granted to the states as bearers of supreme authority in school matters pursuant to Article 7 (1) of the Basic Law… (emphasis added)

In other words, the Court reasoned that even if the school prayer was not simply the recognition of Christianity as a formative cultural and educational factor which has developed in Western history, or worse, it did not fall into the category of conveying Christian culture and educational values due to its lack of pedagogical goals, praying in the school remained constitutionally unobjectionable on the ground that it did not coerce pupils into participating in the prayer.  The dissenting pupils might choose to leave freely or remain seated or any acceptable way to avoid participation without compulsion in the event of prayer.  Moreover, the Court did not assume that abstaining from school prayer would generally or even in a substantially number of cases force a dissenting pupil into an unbearable position as an outsider.  In so doing, the Court ruled out the possibility of discrimination against a pupil only based on his or her absence from the prayer.

In terms of the “private religious choice” test, the Court invoked the text of Article 6 (2) [1] to justify this parental right in freely determining the care and education of their children, while meanwhile the Court took into consideration the constitutional mandate upon the state to establish school stipulated in Article 7 (1).  Consequently, the state’s mandate to establish a school system is autonomous and stands on the same footing as parents’ right to control the education and upbringing of their children; neither has an absolute priority over the other.  However, the Court did not rest on the tension between the state and the individuals.  A further step was to link the power of the school to include payers to the religious preferences of students and parents; it did not justify religious exercises based on the state’s own educational goals.  The method reiterated the reasoning of the Interdenominational School Case. That is, the reason for justifying school prayer did not lie that its exercise per se took precedence over the rights of some students and parents objecting to it, but rather its exercise was a reflection of students’ and parents’ rights to practice their religious faith, which must be balanced and compromised with the rights of parents and students who hold different religious convictions.

The two approaches to the Establishment Clause jurisprudence taken in the School Prayer Case leave the validity of the “endorsement” test on the wane and are gradually marginalizing its role in the test of the principle of neutrality.  Then, what factor or the constellation of factors pushes the evolution of criteria for the test of neutrality in German cases?  This question will be addressed in the section below.

Factors behind the Evolution of German Neutrality Criteria

According to Durham, the German approach is fundamentally more sympathetic to a conception in which the state plays a role in facilitating the actualization of freedom. Rather than being the key power that needs to be constrained if liberty is to be preserved, the state is seen as the vehicle for achieving freedom.  In other words, the interest of individuals in preserving and promoting liberty is not in polar opposition to the standing of state in liberty in Germany.  That is what Durham refers to “facilitative freedom.”  Thestate is not naturally antithetical to the private freedom, and the line of demarcation between the public and private spheres is not so markedly drawn that it is like what Locke claims the spiritual and temporal spheres are “perfectly distinct and infinitely different from each other” insofar as the concern falls into the category of religious liberty.  It is a tradition in which freedom tends to be seen not as the polar opposite of community, but as a value that must be achieved in synthesis with community.  The community orientation in German tradition is naturally manifested in the Basic Law.  Perhaps more important, the interpretation of the text of the Constitution, compared to precedents, the values of the political community, and the judge’s own values, plays a dominant justificatory role in resolving constitutional issues in Germany.  As a consequence, the constitutional adjudication by the Federal Court is of necessity characterized by the community orientation.  This is why the “endorsement” test is losing its ground in German constitutional jurisdictions.

For another thing, as noted, the German jurisprudence relies in no small measure on what is termed fact-sensitive or specific case analysis.  The aforementioned three cases occurred against the common backdrop of public school, though, each of them had its own focus.  For example, in its rule in the Classroom Crucifix Case, the Court distinguished an earlier case in which it did not order all crucifixes removed from the courtroom on the grounds that school, unlike courtrooms, involve both particularly impressionable students and long-term, repeated exposure to the religious symbol. Beyond that, in view of the dissenting opinion that since the school type of the Christian nondenominational school, it cannot be barred from symbolizing the value conceptions characterizing those schools by the cross in classroom, the Court attached much importance to the religious meaning of the cross and its impact on students.  Implicit is the disregard of the asserted linkage in both cases.  The Court also distinguished the case situation with that in the School Prayer Case.  In the latter, the dissenting students may excuse them from school prayer by absenting from such occasions, whereas the dissenting students had to expose themselves to the cross without exemption.  Despite the distinctiveness of each case, however, it does not hamper out ability to find out certain rule in the evolution of criteria for neutrality.   Fact-sensitive approach of this sort provides little general guidance for the Court’s decision concerning church-state relations.  Given the irrelevancy and weak utility of precedents, the Court has to rely heavily on the reading of the text of the constitutional law to validate its jurisdiction.  As a result of heavy reliance on the text, the issue before us turns back to the first point mentioned above.  The federal Court is to resort more to the “coercion” and “private religious choice” tests in its interpretation of neutrality, while consigning the ‘endorsement” test to an insignificant or even negligible measure.  Evidence of such kind can be found in the protest storm throughout Germany in the aftermath of the rule of the Crucifix Case.

The Test Evolution in the United States

In contrast to its counterpart in Germany, the evolution of American neutrality criteria is so slow that one may be reluctant to name it evolution.  The Establishment Clause jurisprudence in America is dominated by the “endorsement” test for a long time, which can be traced back to understanding of the intent and purpose of the Framers of the American Constitution in instituting the Establishment Clause.  According to the essential precept of the Religion Clauses of the First Amendment, which is that all creeds must be tolerated, and none favored, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The reading of such language shapes the rule of the Supreme Court with regard to the Establishment Clause, as is evidenced in Justice Souter’s concurrence in Lee v. Weisman, 505 U.S. 577.  

What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of “a religion,” “a national religion,” “one religious sect,” or specific “article of faith.”  The framers repeatedly considered and deliberately rejected such narrow language, and instead extended their prohibition to the state support for “religion” in general.  

The Madison concern that secular and religious authorities must not interfere with each other’s respective spheres of choice and influence or the metaphor of “wall of separation” comes into play on the justices’ mind without little exception when they are exposed to Establishment Clause cases.  The most obvious indication is recorded in Footnote 4 of Justice Blackmun’s concurrence in Lee v. Weisman, saying that since 1971, the Court has decided 31 Establishment Clause cases, among which only one instance, the decision of Marsh v. Chambers, 463 U.S. 783 (1983), has the Court not rested its decision on the basic principles described in Lemon.  The cumulative criteria developed by the Court over many years strictly place the state and the religion at both ends of spectrum.

Nevertheless, the American Establishment Clauses jurisprudence does not completely revolve around the “endorsement” test.  The “coercion” test also seats atop in the hierarchy of the Establishment Clause jurisprudence.  As Justice Kennedy put it in Lee v. Weisman, 

There are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.  See, e.g., School Dist. of Abington v. Schempp, 374 U.S. 203, 307 (1963) (Goldberg, J., concurring); Edward v. Aguillard, 482 U.S. 578, 584 (1987); Board of Ed. of Westside Community v. Mergens, 496 U.S. 226, 261-262 (1990) (Kennedy, J., concurring).  Our decisions in Engel v. Vitale, 370 U.S. 421 (1962), and School Dist. of Abington, supra, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion…  What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

There is no doubt that the proof of government coercion, at a minimum in Justice Kennedy’s view, which turns out to be an Establishment Clause violation, plays a substantial role in his judgment that the graduation invocations and benedictions is constitutionally objectionable.  Furthermore, the dissenting opinion delivered by Justice Scalia attacked the majority by stating that the Court had not given careful consideration to its test of psychological coercion.  Justice Scalia invoked the legitimacy of the Pledge of Allegiance to justify the lack of psychological coercion in maintaining respectful silence or standing during the invocation.  This proves the relevancy of the “coercion” test in Lee v. Weisman from an opposite perspective. 

By contrast, the “private religious choice” test is seldom observed in American Jurisprudence.  The dismissal or disdain of the prevalent test in German jurisprudence may find correspondence in the majority reasoning in Lee v. Weisman.  In accordance with the reasoning, while in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency, and rejects the balance urged upon us (emphasis added). Still, there is a shift of the approach of the Supreme Court to view the heart of the Establishment Clause.  As Wuerth suggests, the tendency of courts and commentators alike is to increasingly view the heart of the Establishment Clause as the protection of individual religious freedom, rather than the structural separation of religion and government.  Some efforts at such reform can be observed in Justice Kennedy’s opinion on behalf of the majority in Lee v. Weisman, in which some relevant cases are invoked.

“…, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student’s life for precepts of a morality higher even than the law we today enforce…  A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution.  See School Dist. of Abington, supra, at 306 (Golderg, J., concurring).  We recognize that, at graduation time and throughout the course of the educational process, there will be instances when religious values, religious practices, and religious persons will have some interactions with the public schools and their students.  See Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226 (1990).”

The acknowledgement and consideration of religious place in students’ life reveal the Court seeks to promote compromises that best take account of the preferences of everyone and is having respect for the a maximum amount of viewpoints. 

American Cases

The examination of the American cases refers to three cases spanning three decades.  The across-the-board examination may give a rough picture of the evolution of neutrality test in American Jurisprudence.

A. Lemon v. Kurtzman, 403 U.S. 602 (1971)

            This case can in certain sense be said to set up a benchmark against which the following cases are almost always ruled.  Due to the tone-set three-part test articulated inthis case, it is worth devoting significant space to the assessment of the three-prong test.

A close scrutiny will lay it bare that the three-prong test can boil down to two principles.  One is whether there is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines.  The second and more direct principle is whether there exists government endorsement or disapproval of religion.  Concern about excessive entanglement actually reflects the spirit of the “coercion” test.  In the deeper sense, entanglement of such sort is in transgression of the principle of democracy.  As Madison warned, government officials who would use religious authority to pursue secular ends “exceed the commission from which they derive their authority, and are Tyrants.  The People who submit to it are governed by laws make neither by themselves nor by an authority derived from them, and are slaves.”  

The inhibition of government advancement or disproval of religion in general or one religion is an indication of the “endorsement” test.  In the Court’s view, endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.  Disapproval sends the opposite message.  Political divisiveness of this sort along religious lines infringes the democratic principles such as tolerance, equity, freedom, and the like.

Turning to the case, it is not difficult to note that the Court rested almost entirely on the “coercion” test in making its decision.  According to the majority, “we need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.”  The governmental financing and funding of parochial schools, notwithstanding its secular purpose and attendant caveats against any otherwise secular use, was not constitutionally unobjectionable in that in implementing these restrictive provisions, there would inevitably be vast governmental suppression, surveillance, or meddling in church affairs. Although the subsidizing of sectarian schools can be viewed as impermissible fostering of religion on the one hand, the more important reasoning is that the necessarily deep involvement of government in the religious activities of such an institution through the policing of restriction indeed encroaches on the realm of religion, and in any event entailsan unacceptable enforcement regime.  In short, administration of the program is the critical factor on which the Court depended to invalidate the States’ statutes.  This reasoning appears sort of ironic, since the seeming patronage of church schools runs afoul to the interests of church in safeguarding its independence.  Finally, Justice Brennan’s view is characteristic of the fear of the State’s coercive activities in handling church-state relations:

Policing with the restraints, the specific textbooks used, and indeed the words of teachers is far different from the legitimate policing carried on under state compulsory attendance laws or laws regulating minimum levels of educational achievement.  Government’s legitimate interest in ensuring certain minimum skill levels and the acquisition of certain knowledge does not carry with it power to prescribe what shall not taught, or what methods of instruction shall be used, or what opinions the teacher may offer in the course of teaching.

Accordingly, the intrusion of the States on the church educational affairs through their financial aid constitutes the major reason behind striking down the statutes.

B. Lynch v. Donnelly, 465 U.S. 668 (1984)

A striking feature of this case is that from the very beginning the majority put special emphasis on official acknowledgement of the role of religion in American life, and accommodation of all faiths and all forms of religious expression and hostility toward none.  Starting from the logic, it may well follow that the “private religious choice” test would be seen in American Establishment Clause jurisprudence.  But simply resting on the repeated statement that the Constitutional did not require complete separation of church and state, and it affirmatively mandated accommodation, not merely tolerance, of all religions, and forbids hostility toward any, the Court took no further step.  Rather, it retreated to the Lemon three-part test and decided the constitutionality based primarily on the “endorsement” test, that is, by inspecting whether government endorsed or disprovedof religion.  

The Court employed a relatively relaxed criterion in inspecting the constitutionality of the activity of the display of a crèche, however.  While the Court admitted that the lack of a secular purpose may place governmental action in violation of the Establishment Clause, it stressed the premise that in so doing the statute or activity must be motivated wholly by religious consideration.  Furthermore, the Court pinpointed that even where the benefits to religion were substantial, as in Everson v. Board of Education, 330 U.S. 1 (1947); Board of Education v. Allen, 392 U.S. 236 (1968); Waltz, supra; and Tilton, supra, they saw a secular purpose and no conflict with the Establishment Clause.  After careful examination, the Court held that the city had a secular purpose for including the crèche.  Next, the Court looked to the actual effect by such display by comparing the case before them with precedents in similar situations and precedents in differing situations.  In the light of the comparison with the former, the Court judged that they were unable to discern a greater aid to religion deriving from inclusion of the crèche than from these benefits and endorsements previously held not violative of the Establishment Clause. By the latter, the Court found that no comparable benefit t religion is discernible here, whereby the Court affirmed the constitutionality of the city activity.  

Indeed, Justice O’Connor supplemental opinion carries special weight in championing the majority rule.  She considered the central issue in this case as the message the city intended to communicate and actually conveyed in displaying the crèche.  That is, the purpose and effect prongs of the Lemon test represent these two aspects of the meaning of the city’s action.  The examination of intention and actual effect represents the “endorsement” test in the sense that both the intention and effect cannot be either endorsement or disproval of religion.  As O’Connor put it, the purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disprove of religion.  The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.  She concluded that the two-prong test justified the city’s activity on the grounds that neither the government intended to convey a message of endorsement or disproval of religion, nor did the government practice have the effect of communicating a message of government endorsement or disproval of religion.

Even so, though, it is noteworthy that the dissenters represented by Justice Brennan similarly based their counterargument on the “endorsement” test.  In terms of the purpose test, two compelling aspects indicated that it was not improper to attribute unconstitutional motives to a governmental body.  First, the city’s interest in celebrating the holiday and in promoting both retail sales and goodwill are fully served by the elaborate display of Santa Claus, reindeer, and wishing wells that are already a part of Pawtucket’s annual Christmas display.  Secondly, the nativity scene, unlike every other element of the Hodgson Park display, reflects a sectarian exclusivity that the avowed purposes of celebrating the holiday season and promoting retail commerce simply do not encompass.  As a result of these two verdicts, the dissenting opinion reasoned that the city and its leaders understood that the inclusion of the crèche in its display would serve the wholly religious purpose of “keep[ing] Christ in Christmas.”

With reference to the effect test, the dissenters found that the effect of such a display on minority religious groups, as well as on those who may reject all religion, is to convey the message that their views are not similarly worthy of public recognition nor entitled to public support.  In this case, “[w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”

It is noticed that the “coercion” test is employed when coming to the effect test. This intertwined phenomenon is indicative of the complexity and elusiveness of American Establishment Clause jurisprudence compared to the German counterpart.  As mentioned above, however, the primacy of the “endorsement” test fails to overshadow the “coercion” test, and to a great extent the latter runs parallel to the dominant test.  This feature is manifested in the case of Lee v. Weisman.

C. Lee v. Weisman, 505 U.S. 577 (1992)

In this case Justice Kennedy first built his objection to the graduation invocations on the “coercion” test.  In his view, that the principal decided that an invocation and a benediction should be given and designated the nondenominational contents was a choice attributed to the State, and, from a constitutional perspective, it was as if a state statute decreed that the prayers must occur (the State excessive involvement in a private sphere that is committed to and responsible for preservation and transmission of religious beliefs and worship).  As suggested repeatedly, the First Amendment’s Religion Clauses means not only that concern must be given to define the protection granted to an objector or a dissenting nonbeliever, but these same Clauses exist to protect religion from government interference.  Moreover, albeit the fact that the young student can elect to miss the graduation exercise without compromising religious scruples, it is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.  To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where we (the Court) have said the risk of compulsion is especially high.  

Somewhat different, more attention was paid to the “endorsement” test in Justice Blackmun’s concurrence.  As he put it, 

But it is not enough that the government refrain from compelling religious practices: It must not engage in them either.  The Court repeatedly has recognized that a violation of the Establishment Clause is not predicated on coercion. (“The decisions [in Engel and Schempp] acknowledged the coercion implicit under the statutory schemes, but they expressly turned only on the fact that the government was sponsoring a manifestly religious exercise”); Committee for Public Ed. &Religious Liberty v. Nyquist, 413 U.S. 756, 786(1973) (“[P]roof of coercion … [is] not a necessary element of any claim under the Establishment Clause”).  The establishment Clause proscribes public schools from “conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred,” even if the schools do not actually “impos[e] pressure upon a student to participate in a religious activity.” (some case names omitted)

As a result, the mixing of “coercion” and “endorsement” tests can be observed in American Establishment Clause jurisprudence.  Depending on different contexts in which the cases are presented, the Court has varying degrees of leaning toward either the “endorsement” or “coercion” test.  

Factors behind the Evolution of American Neutrality Criteria

The American approach to church-state relationships may find its origin in Locke’s theory of religious freedom.  Based on this dualistic view, Locke argues for a division of responsibility between the church and the state.  The church is to care for the salvation of souls, and in such matters of salvation the state has no legitimate concern.  The state’s function, rather, is to protect and promote the civil interests.  In this way, Locke concludes that church and commonwealth are “perfectly distinct, and infinitely different from each other” and that “[t]he boundaries on both sides are fixed and immoveable.”  As such, the line-drawing process is to determine which side of the line questions of religious freedom fall on.  

However, the pleasant prospects offered by the dualist view dissolve under closer examination.  Rather than taking an absolutist approach in applying the Establishment Clause and mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith, the Court has scrutinized challenged conduct or legislation to determine whether, in reality, it establishes a religion or religious faith or tends to do so.  The process is characterized bythe well-known Lemon three-prong test.  In so doing, not only is the “endorsement” test credited with the primary criterion in American Establishment Clause jurisprudence, but also the “coercion” test is employed in much of the time.

For another thing, the lack of “private religious choice” in America can in large part be attributed to the so-called American privatizing model.  It follows that private sector is the domain of freedom, while the state is a creature of delegated powers.  In the sense, expanding the public sector means contracting the private sector, and thus, the liberty of individuals.  In the zero-sum ledgers of liberty, every affirmative obligation assumed by the state is offset by a reduction of liberty somewhere in the system.  The idea that the state power is naturally incompatible with the private freedom is embedded in the American scheme, thus dismissing the conception that the state may take into consideration the religious preferences of its constituents and seek out a solution that accommodates individual religious beliefs as far as possible.  The political process by which government religious speech and funding accommodate the constituent religious practices is the focal point of states with community orientation in deciding the constitutionality of challenged statutes or conduct, whereas the United States does not identify with the political process.

Conclusion

The test evolution in the German and American Establishment Clause jurisprudence cannot be generalized in a completely unambiguous manner.  Based on the above analysis, however, we may find our way into a sketchy depiction of what goes on in both states’ neutrality criteria. 

The Federal Court inclines to rely on the “private religious choice” test, along with the consideration of “coercion” test where appropriate.  By contrast, the Court is reluctant to adjudicate the cases by virtue of the “endorsement” test.  The fundamental reason can be traced to the Kantian tradition in German community where there has been a tendency to think of constitutional law as embodying an objective ordering of fundamental values.  The community orientation characterized by anti-utilitarian instincts in German adjudication no longer places the state on the opposite side of the will of one person. Rather the state makes every endeavor to accommodate all religious faiths via the political process.  An uncomfortable outcome is that the accommodation effort may weight the scale toward the majority religion, however.  It is undeniable that the state in reality cannot satisfy all religious preferences as far as possible without violating some objectors’ religious beliefs.  That the tenet calls for accommodate as many religions as possible pushes the Court to side with the majority religions, while diminishing the voice of the minority.  The rules in the interdenominational school and school prayer cases reveal that the Court has a bias toward the majority beliefs.

Insofar as the American jurisprudence put a premium on the “endorsement” and “coercion” tests, it is safe to say that the American approach is subjected to the Lockean liberalism rooted in American history, culture, and tradition.  The established incompatibility between the “endorsement” and the “private religious choice” tests leaves the application of the latter on the margin in America.  There are signs that the Supreme Court is intended to change the course of jurisprudence and puts in more focus on the “private religious choice” test.  But unfortunately, the reference to foreign jurisprudence and cases is foreign to the Court, and it must cost much time for to chart the new course of action.

Comparative work of such sort cannot provide us with a clear-cut picture about the evolution in both states’ Establishment Clause jurisprudence, though, yet it may serve as a starting point for the future research in this comparative enterprise.