The Constitutional Sins of Brennan

The late Justice William Brennan was known to be one of the most influential liberal supreme court justices in modern history. He was appointed by President Eisenhower and served on the court from 1956 to 1990. Prior to his appointment to the U.S. Supreme Court he was a judge on the New Jersey Supreme Court.

Several of his opinions have had a detrimental impact to the development of Constitutional law. The focus of this discussion, however, will be a few of his opinions on religion and law. The questionable constitutional bases for these opinions will have an opportunity to undergo further scrutiny with a more reliable constitutionalist Supreme Court with the recent appointments of Neil Gorsuch and Brett Kavanaugh.

A few controversial Brennan opinions are Abington School District v. Schempp; Marsh v. Chambers and Lynch v. Donnelly.

Abington School District v. Schempp

Justice Brennan authored a concurrence to this opinion.

In this case, a parent brought suit because his son attended a public school that required listening and occasionally reciting bible verses in a classroom setting as part of its educational experience. This was required pursuant to Pennsylvania state law. He had alleged a violation of the Establishment Clause. The Supreme Court found in his favor and ruled that laws requiring religious exercise directly violated the Establishment Clause. Public schools would not be free to sponsor Bible readings and related prayers as part of the educational experience.

Justice Brennan’s concurrence focused on the court’s prior decisions, with significant discussion spent on Engel v. Vitale, which the court ruled state officials cannot compose official prayer for public schools. We have discussed this in-depth in prior posts. He also focused on arguments regarding the evolution of society’s composition and how at the present time there is greater diversity in faith and non-faith backgrounds, thus the facts in this matter would validly constitute an establishment of religion in violation of the First Amendment.

He claims that concern about an official state-run church was not the full extent of the protections of the Establishment Clause. It left room for further prohibitions allowed against official involvement in religion. He believed it was meant to prevent those official involvements of religion which would tend to foster or discourage religious worship or belief. He discouraged a literal process of assessing the intent of the framers because of an alleged ambiguous historical record. He did concede, however, that “they gave no distinct consideration to the particular question whether the clause also forbade devotional exercises in public institutions.”

Later, however, he reconciles this view with asserting that the education system has evolved to its present form in the modern day and more religious diversity exists in society than at the time of the founding, thus we should reasonably conclude that today this activity should be deemed a violation. His main focus was that “our interpretation of the First Amendment must necessarily be responsive to the much more highly charged nature of religious questions in contemporary society.”

Brennan presents an elaborate argument here about why he deems the bible recitation unconstitutional with the modern evolution of society. His core reliance on Living Constitutionalism, however, is problematic. This interpretive method weighs an alleged present societal view as a determining factor when dealing with Constitutional ambiguity over the original intent or original public meaning of the framers. Brennan assumed the role of legislator in attempting to establish a new standard based on his present views of society. He places this view in the center of interpretation which in essence shows a lack of judicial humbleness when considering his role as interpreter of law.

If the status of law and religion, specifically the Establishment Clause required a reassessment for the modern era or further defining, it should be left to the states and elected officials to legislate. If Pennsylvania had wanted to change the practice, the state had the power through the democratic process of repeal. Moreover, on a federal level, the amendment process should have been considered.

It was not the role of Justice Brennan and the other Living Constitutionalists to make this determination. When one considers the amendment process it also directly contradicts the Brennan view. If Brennan had the confidence that society as a whole now embraced this view of a reduced role of religion in the public square, why then should there have been concern about passing an amendment with 2/3 of states to reflect same? This is a question to consider when we view “society-driven” opinions by jurists.

Marsh v. Chambers

Justice Brennan composed a dissenting opinion in which he elaborated on how the government funding of chaplains is a clear violation of the Establishment Clause.

In contrast, the Court held that it was Constitutional to uphold the government funding of chaplains. The Court, however, relied upon the tradition of the nation in supporting chaplains at various levels of government. It should be noted that the court did not rely on a free exercise claim or delve into the Constitutional recognition of religion to support the funding of the chaplains.

Brennan stated:

“The process of choosing a “suitable” chaplain, whether on a permanent or rotating basis, and insuring that the chaplain limits himself or herself to “suitable” prayers, involves precisely the sort of supervision that agencies of government should if at all possible, avoid.”

The selection of chaplains and ensuring that prayer is suitable does not fall outside the boundaries of a respectful interpretation of the Establishment Clause. He should have taken an approach more focused on assessing if the prayer was compelled and was not one of a universal nature. A communal prayer reflecting on a higher being led by a chaplain and blessings to public officials or soldiers should not be interpreted as government mandating or prescribing an official church or faith tradition. If one finds themselves as not identifying with any form of faith, they should not be compelled to participate or punished for a lack of participation. A communal prayer offered by a chaplain, however, can unite various faith traditions including the major faiths of Catholic, Protestant, Judaism and Islam that are present in our nation today.

Justice Brennan also continued with four other major points.


First, he elaborated on that liberty implicates freedom of conscience and claims “the right to conscience, in the religious sphere, is not only implicated when the government engages in direct or indirect coercion. It is also implicated when the government requires individuals to support the practices of a faith with which they do not agree.”

Here, Brennan makes the broad assertion that by funding chaplains, it is forcing Americans to support practices of faith to which they do not agree and infringing upon their conscience rights. The tradition of taxpayer funding of chaplains existed since the early days of America. The framers clearly did not view this practice as a contradiction of the Establishment Clause, thus enabled this practice. Americans are free to practice their own faith or choose to not practice a faith tradition regardless of the denomination of the chaplain. The presence of a chaplain for government functions is not representative of a compelled church state that was the underlying concern of the Establishment Clause.


Second, he contended that the state should remove itself from disrupting the autonomy of religious life and undue involvement of the supervision of religious institutions and officials.

The role of a chaplain recognized in governmental functions is in no way disrupting the autonomic nature of a religious institution. Chaplains of various faith traditions are made available for these functions and the various denominations of faith traditions are free to continue operating without government’s undue involvement. The distinction is clear. Another traditional example is the faith of a soldier is etched into their dog tag; this will allow their religious needs to be met in times of tragedy. For example, if a Catholic solider is mortally injured on the battlefield, his command unit will be able to find him a priest chaplain for last rites and the same can occur with other faith traditions. This is not disrupting church autonomy or exerting supervision, rather it is a way to provide the solider with his faith available to him in his last moments. Government is providing a pathway for religion, whichever is designated by the solider, to meet his needs at the end of his life. His conscience was not disrupted and this does not serve as any form of precursor for forcing religion on Americans. The very concept is bound with individual free will and acceptance. The state in this situation is a mere conduit.

Trivialization and Degradation

Third, he believed that “the purpose of separation and neutrality is to prevent the trivialization and degradation of religion by too close an attachment to the organs of government.”

A governmental openness to religious function does not trivialize faith or reduce it in importance, rather the opposite occurs, it recognizes the needs of its people and the importance of faith in their lives. The strict separationist view that dominated the Court while it was populated with more liberal judges, has produced the trivialization and degradation of faith to the point that now we live in a society where long-standing war monuments are the target of many challenges. The shape of a cross or star of David are viewed as offenses, this is the slippery Constitutional slope that has been made possible by the Living Constitutionalists or so-called “progressive” jurists such as Brennan. The Supreme Court is currently adjudicating a challenge on this issue and hopefully there will be more clarity on it soon.

Conflict and Authority

Fourth, he believed separation avoids the problem of political conflict over faith in the public arena. He also expressed concern on if an American feels alienated if the state leaves the impression that it is providing an authorized or official perspective on matters of faith.

Here, Brennan makes his most plausible argument about the concerns of politics intertwined with faith. Legislating faith in the public square can lead to problems. While there is a reasonable argument here, a strict separation is not the answer to prevent the danger. The Constitution clearly recognizes the importance of the influence of religion within the fabric of the nation with the Establishment Clause and Free Exercise Clause.  When legislation considers the interests of faith, however, it should be taken on a case by case basis. Legislation allowing specified funding to religious schools or voucher systems for students seeking to attend religious schools should not be considered in the same way as legislation mandating Sharia Law in a municipality or mandating that only a Catholic chaplain is allowed to lead in prayer before board meetings. The latter two examples would clearly rise to the level of violations of the Establishment Clause, however, to broadly assert that all legislating of religious interests in the public square can be problematic fails to assess the more complex issues present.

Finally, Brennan leaves us with this main idea:

“The argument tendered by the Court is misguided because the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers. We have recognized in a wide variety of constitutional contexts that the practices that were in place at the time any particular guarantee was enacted into the Constitution do not necessarily fix forever the meaning of that guarantee.”

This commentary highlights the fatal flaw in Brennan’s jurisprudence – he lacks a degree of judicial humility. Even if one concedes the point that we should not be bound by original intent or the experience of the framers, it still does not justify Justice Brennan’s tendency to embrace legislating from the bench on how he views what the modern age and future ages should embrace. By removing an interpretive philosophy from a fixed standard, the door is opened to judicial activism and confusion of roles of government. There are clearly some aged Constitutional issues or contexts that could best be resolved through the modern lens; however, the procedure is outlined clearly in the Constitution to address that matter. The amendment process has led to many advancements such as ending slavery and enabling women the right to vote among many other issues. This process has highlighted societal progress but was Constitutional in nature, not falling to the winds of judicial activism.

Lynch v. Donnelly 

This case concerned a Christmas creche displayed in a Rhode Island town. It was a tradition in the town for 40 years and the display also included a Christmas tree and Santa Clause decorations. A lawsuit was brought alleging a violation of the Establishment Clause. The Supreme Court ultimately held that the creche was not considered a violation of the Establishment Clause. It falls short of an endorsement of religion, but rather is rooted in the national tradition of the nation in celebrating the Christmas holiday which constitutes a secular purpose.

Although the outcome was favorable, it lacked sufficient reasoning. It used the tradition arguments and explained that the creche should be constituted as fulfilling a secular purpose, however, this means of interpretation has its flaws. The Court should not retreat from evaluating on the premise that religion can be acceptable in the government forum as long as it not provide compulsion of a specific faith tradition. When assessing the tradition itself, the creche clearly began as a reminder of faith in the public square, most specifically during the Christmas season. It did not demand adherence to Christianity or Catholic tradition, it was simply a reminder of the faith filled element of the Christmas season. The Supreme Court should transition from the position of beginning the assessment in search for a secular purpose to support religious symbolism to accepting the place of religion and evaluating if its position crosses the line to compulsion. A new test should consider this concept. 

Brennan’s dissent focuses on the creche’s failure to pass the Lemon Test that has been used to evaluate Establishment Clause cases. It requires that the practice must (1) have a secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion and (3) it must not foster excessive government entanglement with religion.

As to the first prong, he did not find that the creche constituted a valid secular purpose. He stated that the municipality demonstrated no clear purpose in “purchasing, displaying or maintaining the creche.”

As to the second prong, Brennan found that the primary effect was that people who believed in the message of the nativity can view it as government recognition and support of their views. Minority religious groups and those who reject faith view this as the government not finding their views worthy of similar support and ultimately Brennan finds that this goes against the intent of the Establishment Clause.

In terms of the final prong, Brennan considers the creche display as a potential threat of excessive government entanglement with religion. He believes that other faith groups may now pressure the government into including their symbols in a holiday display and now the government will need to be a part of the accommodation process. It could also create strong religious divisions in a community and set the foundation for conflict.

Brennan’s analysis raises some contradictions. He alleges that the minority religious and anti-religious groups would not find their views worthy of similar government support, thus the creche should not be allowed to remain. Yet, later he becomes concerned with an “excessive government entanglement” for accommodations if the other faiths approach the municipality for representation in the display. It should also be noted that there is no evidence that other faiths were denied representation upon requests. He also expresses that the intent of the Establishment Clause was not to establish state-run religion and a compelled religious view on the citizens. By allowing the creche to be present and inviting other faiths to participate, however, it not a directive from the state, but rather a request from the people that make up the state to have their faith tradition recognized during the holiday season. Recognition does not equate to compulsion of religion. There is no injury caused to citizens that do not subscribe to the same faith traditions.

Overall, Brennan’s gross misinterpretation of the bounds of the Establishment Clause and failure to embrace a balance of faith that does not equate to compulsion in the public square has created problematic issues the nation continues to deal with today.