Establishment Clause Appeasement

Abstract

In this Article, we ask whether some liberal justices have followed a strategy of judicial appeasement in recent cases involving religious freedom, especially under the Establishment Clause. We begin by specifying a conception of appeasement, which we define as a sustained strategy of offering asymmetric concessions for the purpose of avoiding further conflict, but with the self-defeating effect of emboldening an adversary to take more assertive actions. This conception is a general one, and to avoid confusion, we disclaim moral comparisons to historic instances. We then apply this conception to leading cases in three areas of doctrine: government religious speech (with special attention to the Bladensburg Cross case), state funding of religion, and religious exemptions. Across these cases, a pattern of decision-making has emerged that provides evidence of judicial appeasement by some liberal justices. We then argue that appeasement carries risks for worsening legal outcomes, legitimating bad decisions, and shifting the set of feasible constitutional options. In response, it might be objected that liberal justices are not engaging in appeasement but rather in strategies of compromise or cooptation. Although these alternatives have some plausibility, we argue that the pattern of decision-making in recent religious freedom cases should raise concerns about appeasement and the risks associated with it.