The Establishment Clause Overseas

Religious Liberties Practice Group Teleforum

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How much, if at all, does the First Amendment’s Establishment Clause constrain what the United States can do overseas?  In a world where religious groups often participate in the operations and elections of foreign governments, and in a global struggle against violent Islamism that often requires cooperation with moderate Muslim groups, this question is more important than ever.

Join us for a Teleforum discussion featuring Nathan Forrester and David Buckley. Mr. Forrester analyzes these types of legal questions at the Justice Department’s Office of Legal Counsel. Professor Buckley has written about this question and returned last year from the State Department’s Office of Religion in Global Affairs, where the question was frequently considered and sometimes debated. Prof. Justin Walker of Brandeis School of Law will moderate.

Featuring:

David Buckley, Assistant Professor, Paul Weber Endowed Chair in Politics, Science & Religion, University of Louisville

Nathan Forrester, Attorney-Adviser, Office of Legal Counsel, U.S. Department of Justice

Moderator: Prof. Justin Walker, Assistant Professor of Law, University of Louisville Brandeis School of Law

 

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Event Transcript

 

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Wednesday, July 11, 2018, during a live teleforum conference call held exclusively for Federalist Society members.

 

Wesley Hodges:  Welcome to The Federalist Society’s teleforum conference call. This afternoon our topic is the Establishment Clause Overseas, and is hosted by our Religious Liberties Practice Group. My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at the Federalist Society.

 

            As always, please note that all expressions of opinion are those of the experts on today’s call.

 

            Today we are very fortunate to have with us a very accomplished panel of experts, and our moderator today is Professor Justin Walker, who is Assistant Professor of Law at the University of Louisville, Brandeis School of Law. After our speakers give their remarks and have a bit of conversation today, we’ll move to audience Q&A, so please keep in mind what questions you have either for the subject or for a particular speaker. Thank you all for speaking with us. Justin, the floor is yours.  

 

Prof. Justin Walker:  Thanks, Wes. Good afternoon. I’m excited to moderate this teleforum about whether, if at all, the First Amendment Establishment Clause constrains what the United States can do overseas. In a world where religious groups often participate in the operations and elections of foreign governments, and in a global struggle against violent Islamism that often requires cooperation with moderate Muslim groups, I think this question is more important than ever. I’d like to thank the Federalist Society for hosting and thank, especially, Professor David Moore for all his work in organizing it. And, of course, I’d like to thank both of our speakers for being here.

 

            Nathan Forrester currently works at the Office of Legal Counsel in the Department of Justice and previously served as Solicitor General of Alabama under then Attorney General William Pryor. He clerked for Associate Supreme Justice Anthony Kennedy from 1993 to ’94, and Judge J. Harvey Wilkinson of the U.S. Court of Appeals for the Fourth Circuit from 1992 to 1993. We were just talking before the call about two of his co-clerks, Justice Gorsuch and Judge Kavanaugh. He is a 1992 graduate of the University of Chicago Law School.

 

            I am also excited to be joined by our second speaker, David Buckley. He is a Professor of Political Science at the University of Louisville. He recently concluded a one-year term as a Senior Advisor in the State Department’s Office of Religion and Global Affairs, where he was there from 2016 to 2017. So he saw part of the Obama administration and part of the Trump administration. David’s research focuses on religion and international affairs, and in particular the influence of religious actors on democratic politics. His book, Faithful to Secularism, was awarded the 2018 Religion and International Relations Book Award. His research and writing has appeared in leading journals and media outlets. He holds degrees from Georgetown, Queen’s University, Belfast, and the University of Virginia. So, with that, I’m going to turn it over first to Nathan Forrester. I’m looking forward to hearing your thoughts.

 

Nathan Forrester:  Thanks, Justin. It’s good to be here. This is, from a legal standpoint, a somewhat difficult question to organize the answer to because there are a lot of disparate authorities. They’re somewhat sparse, and the exact answer is not altogether clear. But in an attempt to organize it, I think you want to look at the question as preceding along two lines. One is the scope of application of the Establishment Clause, where exactly it does apply within the United States, without the United States, or does it depend on citizenship or connection to a national community. And then the strength of the application of the Establishment Clause, where it does apply. Does it apply to the same extent that it would apply to domestic assistance, or would the Establishment Clause apply in a somewhat muted or moderated form depending on the national security or foreign affairs interest that is at stake?

 

            My tentative answer, which I hope to demonstrate in the time, is that I think that—at least the current approach—is to look at the Establishment Clause as applicable to anyone who is effectively a member of the national community. Applying an analysis somewhat like the Supreme Court did in Verdugo-Urquidez, which is actually a Fourth Amendment case. But they suggested that their tendency was to go clause by clause in the Constitution, and determine based on that clause whether the person who was being effected by the government activity in question was a member of the national community or not. And they suggest that the First Amendment is like the Fourth Amendment. So it’s among those where you need to have some such connection.

 

      Now, as we’ll see when I get into the discussing the query whether there’s really a meaningful distinction between that and another view, which tends toward the result that is effectively global in application. But I think that is the best way to summarize their current approach.

 

            Then as far as the strength of application of the clause, I think the case law does indicate, including most recently the travel ban decision, that the strength of the Establishment Clause is to be moderated depending upon the precise national security or foreign affairs interest at stake. So in a foreign assistance context, it’s not necessarily going to apply to the full extent of the Lemon test. On the other hand, I’m not sure that they would apply what was effectively something like a rational basis test like they did in the travel ban case.

 

      If you were to start with the question of the scope of application of the clause, there was a time when they tended to take a largely territorial—and I say they, the Court—tended to take a largely territorial approach to the application of the clause. I shouldn’t say the clause, the Constitution more generally, with hints along the way that the First Amendment would be included in that construct. Yick Wo v. Hopkins applies the Due Process Clause to resident aliens, and in speaking of the Fourteenth Amendment Due Process Clause, it says that these provisions are universal in their application to all persons within the territorial jurisdiction.

 

            What’s interesting is that the Due Process Clause is not textually limited to territorial jurisdiction. It actually says all persons, but they go ahead and have this understanding that it was nevertheless limited to territorial jurisdiction. Then a couple years later in a case called In re Ross they also imply that the Constitution is basically a government ordained and established for the United States and not for countries outside of its limits. Now, that was actually a case about the grand jury rights and trial by jury rights. It doesn’t necessarily apply to the First Amendment, but the language they used suggests that they’re, again, taking a more territorial approach.

 

            The insular cases come along in the early twentieth century. They tend to reinforce this view, although with some doubt created by some dicta in Downs v. Bidwell. The insular cases basically suggest that the Constitution applies fully to incorporated territories, as it would within the United States, but less fully to unincorporated territories, and that only fundamental rights, fundamental structural restraints of the Constitution, apply in the unincorporated territories. And you might infer from that that in a territory completely outside the United States the Constitution would be applied very little, if at all.

 

            However, in Downs v. Bidwell, which was about the application of the Uniform Duties Clause to Puerto Rico, there is some language where they get into discussing even the Establishment Clause, and they equate it to provisions, like the Bill of Attainder Clause and the Emoluments Clause, as going to the competency of Congress to pass a bill of that description. They suggest that perhaps the same remark may apply to the First Amendment, and then quote the First Amendment, including the Establishment Clause before hedging and saying, “Well, we don’t mean to actually apply an answer to this question.”

 

            But they begin to suggest there that they’re taking more of a broad textual approach that would arguably even be global in view, which is that if the Establishment Clause is phrased as, “Congress shall make no law respecting an establishment of religion,” it’s doesn’t matter where that law might have its application. This is a limit on what Congress can do, so it should apply universally. That’s the first hint of what tends to become a more modern approach, which at least leans in the direction of treating Establishment Clause as almost global in application.

 

            They don’t go all the way to that view though right away. There’s language in Curtiss-Wright which does at least expand the territorial view to make clear that the Constitution covers U.S. citizens abroad. Reid v. Covert, which is an interesting case, again dealt with the right to jury trial, a woman accused of killing her husband overseas. It did say that that right, which it might not be considered to be among the fundamental rights that are guaranteed to unincorporated territories, but that right did apply to the U.S. citizen overseas. So right away they’re starting to hedge some and say, “Well, it’s not just U.S. territory. If you’re a U.S. citizen you also have sufficient connection to the Constitution to be within its protection.” Now, again, those aren’t First Amendment cases, necessarily. So you’re kind of left to draw inferences from that.

 

            The beginnings of a much stronger sense that there is a global application to the clause really are in cases like Everson, Flast v. Cohen. Everson seems to treat the clause as being more about the defense of tax payer interests, which is not by its nature something that is limited based on where the government action takes place. The U.S. tax payer is arguably always going to be affected by foreign assistance. There’s a sense in which the decision made by Congress to appropriate funds for foreign assistance is one that’s made here, domestically. The fact that it then in turn has application to an overseas territory wouldn’t necessarily change the applicability of the Establishment Clause analysis.

 

            Flast v. Cohen, of course, ends up recognizing an exception to the no taxpayer standing rule, and allows mere taxpayers, who can’t otherwise claim to have been affected by the program at issue, nevertheless can sue to allege a violation of the Establishment Clause. Now, granted that is a standing case. It's not necessarily about the scope of the Establishment Clause, but they proceed under that egis to considering always the scope of the Establishment Clause, and not giving us a sense that it depends any further on the connection on the taxpayer to the clause.

 

            And that kind of reaches full flower and the one case that really comes closest to being on point to this question—it’s really the one case that those of us who have to try to figure out this question on a practical basis have to wrestle with—which is the Second Circuit case called Lamont v. Woods, which comes in, I believe, 1991. That involved a USAID program where the USAID was providing grants, under the Foreign Assistance Act, to domestic, non-governmental organizations to then, in turn, sponsor religious schools abroad. And these were, unquestionably in the parlance of the time, pervasively sectarian institutions, or at least that was deemed to be an issue for which there was insufficient evidence to warrant summary judgement. It would have been left to be determined at trial. Eleven of the schools according to Lamont were Jewish, nine Roman Catholic.

 

            And the Second Circuit took the view that where the expenditure of federal tax money is concerned, and I’m quoting, “there can be no distinction between foreign religious institutions and domestic religious institutions.” Bracket me for a moment, they do at least part ways with the lower court in suggesting that the Establishment Clause analysis may be muted somewhat because of the foreign context, which is the other line of inquiry that we had pursued along. So I’ll return to that in a second. But at least in terms of the scope of application of the clause, they’re suggesting what seems to come close to a global view of the application of the clause.

 

            And in fairness, they’re able to cite some degree of textualist and original evidence to support that view. Again, the clause itself was phrased in terms of, “Congress shall make no law respecting an establishment of religion.” It’s not defined in terms of the personhood of who is affected. One animating purpose of the clause is thought to be the protection of taxpayers. They cite the famous Madison Memorial in remonstrance and opposition to the Virginia Bill that would have required all the Virginia taxpayers to pick a Christian religion of their choice to fund with a tax. They note that as having influenced the enactment of the clause. That again would suggest because the orientation as to the taxpayer, the application of the clause does not necessarily depend on where the government activity in question takes place. It’s ultimately coming out of the U.S. Treasury.

 

            They also deal briefly with the framing history, and while this opinion largely takes a rather dim view of originalist analysis as a basis for constitutional interpretation, it does then go ahead and do something of that nature. It looks at the omission of the word 'national' from the original draft of the Establishment Clause that James Madison had proposed, which was to prohibit the establishment of a national religion. The parties had proposed that that original draft should be understood to inform the meaning of the Establishment Clause, and it suggested that really the only concern of the Framers was with establishments of religion domestically. They said, “No.” The fact that the word gets deleted, I believe, by the committee on detail and then later, at the behest of Elbridge Gerry, who opposed a motion by Madison to restore the word national, they take the omission of the word national to suggest that if anything the Framers were concerned about government activity that would have the tendency to affect establishment of religion anywhere.

 

            You can challenge whether that was a fair reading of… Gerry was more motivated by his anti-federalist leanings. He did not like the idea of any reference to the government that was being established by the Constitution as being national rather than being federal in nature, or a union of states. And so his motivations didn’t really have anything to do with the potential overseas scope of the clause. I think it’s hard to postulate that they had that very much in mind when they were having these debates. Nevertheless, the Second Circuit purported to draw that conclusion from it.

 

            And that brings us to the present day. And I think I have to discuss the travel ban cases because they do seem to me to have some bearing on this question, both on the question of the scope of application of the clause, but also on the question of strength of application of the clause. As I indicated, Lamont in the Second Circuit, seems to suggest that while the clause may well be global in application, you do have to take in to account the foreign affairs interest at stake. And they cite favorably in a footnote a Law Review article by Professor John Mansfield in which he had proposed just this framework, and said that when applied to foreign assistance you shouldn’t necessarily hold the government to the standard that you would domestically, which at the time included the essentially absolute prohibition on aid to, quote, unquote, "pervasively sectarian schools." That in many countries all the available schools will be pervasively sectarian in countries that don’t observe the separation that we do. And it would be unrealistic to expect the government to be able to carry out certain foreign assistance programs if it were to be so constrained.

 

            On the other hand, he suggested that an attempt by the U.S. government to, for instance, perhaps prophetically, he suggested, “promote a more moderate version of Islam,” that that would still be an untoward action by the U.S. government overseas. He doesn’t suggest a fully scaled down approach to the scope of the clause, but he suggests that it may be somewhat tamped down. The Second Circuit Lamont, while not actually taking a clear position on that, seems to suggest that that might be the case. The travel ban cases are interesting in this regard, basically in the way they approach the Establishment Clause question that was presented to them. And it’s obviously not a foreign assistance case, but they find standing on the part of U.S. citizens who were affected by not being able to have a relative who resided in one of the countries where citizens were deemed inadmissible be able to come into the country.

 

            It adopts something of the national community approach that I think Verdugo-Urquidez suggests without going into any great detail its analysis. But what it’s doing is finding connection between the interests of the American citizen and the action abroad that comes close to rendering the clause global in application. It's just hard to think of circumstances, again, if you take taxpayer standing seriously,  and granted it’s been limited somewhat by the Hein v. Freedom From Religion Foundation as applying only to congressional -- to acts of Congress and not to discretionary Executive Branch spending. Still, if you take the idea that the taxpayer has an interest in the applicability of the Establishment Clause, and that the relative or even a person with a close relationship, or some such phrasing they used, would also have standing to assert and challenge on Establishment Clause grounds to the travel ban. It would again seem to suggest that you can basically use this national community analysis that Verdugo-Urquidez seems to endorse to render the clause, if not global in scope, quite far reaching in scope.

 

            And then the whole ball game would seem to become, "Well, then at what strength does the clause apply?" And in that regard they are willing to apply a significantly more relaxed scrutiny certainly than the dissent wanted to apply and then more relaxed than the lower courts had applied, affectively a rational basis scrutiny.

 

            And so I think in shifting back to the foreign assistance context, my sense of all that is that Lamont is probably not too far from the mark in what the Supreme Court would do if squarely presented this question about the scope and the applicability of the Establishment Clause overseas. They would look at, in some fashion, as to whether a member of the national community, basically a citizen, an LPR, can claim to have been affected in some fashion by the government activity in question. And then they would consider whether that particular government activity implicates a national security or foreign policy interest. In particular that that particular national security or foreign policy interest would likely determine the level of strength at which they apply the Establishment Clause.

 

            That certainly leaves a lot of questions about just how strongly it would apply. I’d certainly be hesitant to counsel that an analysis much different from Lamont would end up applying to foreign assistance programs. And it might really depend on the particular nature of the foreign assistance at issue. Lamont was about funding religious schools overseas by an intermediate domestic NGO. It was basically, the USAID program was designed to promote good will with the United States overseas. These schools were expected to be promoting U.S. values and putting the U.S. in a good light. I’m not sure that would be deemed to be as strong an interest as, for instance, the interest in keeping residents of countries that are deemed to be dangerous areas, out of the country where the national security interest is definitely more strongly implicated. That seems to have been the approach that the Court took in the travel ban cases. I’ll stop with that. Okay, go ahead.

 

Prof. Justin Walker:   I was just going to say let me jump in, if I can. Sounds like you were thinking the same thing. I think the legal issues that you’re discussing are absolutely fascinating. And I think that the political question, the kind of practical question of how this is playing out right now the State Department, is also very interesting. And I think, David, if you could maybe talk a little bit, or more than a little bit, about kind of what you saw at the State Department, and what your research, really around the world, has taught you about this question.

 

David Buckley:  Sure, yeah, happy to chime in on that, Justin, and thanks for the invite to be here. It’s a little bit humbling to be on a call for attorneys as a political scientist, but to borrow from Nate, “where the authorities are sparse and disparate,” I guess I feel more comfortable just spouting off from practical experience. What I’ll try to do for just a few minutes here is give a sense of what I saw as a political scientist working in government from August of 2016 through August of 2017 at the State Department’s Office of Religion and Global Affairs.

 

            Before I get into a little bit of background on the Office, and how it tried to navigate some of these unresolved questions about constitutional law and religion in U.S. foreign policy, let me just say a little bit about the Office and where it was located at the time. So RGA, the Religion and Global Affairs Office, was founded in 2013, but as the final stages of a relatively extended process through which the State Department tried to build diplomatic capacity to both understand how religion impacted U.S. foreign policy, and then to respond to those impacts. It was located within the Secretary’s Bureau. For those who are unfamiliar with the organizational chart of The State Department, the S Bureau of offices are those that are set up closest to the Secretary’s office. RGA was right next door to the Policy Planning Office, and worked very closely during its first three or four years advising the Policy Planning Office, which is the office that advises the Secretary, and his or her senior staff, on medium-term strategy for the Department.

 

            That’s where we were located, and where I was a Fellow at the Council on Foreign Relations, International Affairs Fellow during that year. Before getting to that, I want to just give a little bit of background on where this office came from, and how it fits into other pieces of the foreign policy bureaucracy that have to do with religion and foreign affairs.

 

            First, the distinction that is important to be aware of between the Religion and Global Affairs Office and International Religious Freedom Office. At least at its founding, RGA was set up distinct from the International Religious Freedom Office, an office that is congressionally mandated under the IRFA Act to monitor and advocate for international freedom abroad.

 

            I think it’s fair to say that the offices saw their missions as complimentary, but distinct. In other words, the IRFA Office was really designed to advocate for a particular normative commitment of U.S. foreign policy. RGA was set up as a bit more of an analytic and then engagement office with a broader policy spectrum on its agenda. It's also worth knowing that, and this actually comes up in some of the case law that Nate just referenced, in some ways USAID actually has been grappling with these questions for longer, mostly because so much of the international assistance world is, I wouldn’t say dominated by, but pre-dominated by anyway, religious networks, either big sort of multinational players like Catholic Relief Services, or American Jewish World Service, or at the very grass roots level, implementing networks that are tied to all manner of religious institutions. And so there are sort of legal questions about religion and the Establishment Clause in particular and USAID programming that go back well beyond where the State Department’s experiences lay in this area. USAID set up a faith-based office, I believe in 2002, very early in the faith-based initiative. Whereas State didn’t establish RGA as part of the overall faith-based community initiative until 2013. So in some ways AID has been wrestling with these questions for longer.

 

            I think it's fair to say that in practice what I saw on the ground was that there's a general -- to borrow a bit from the framework that we opened with. There's a general consensus, not total, but general consensus, that the scope of the Establishment Clause does apply in some way to U.S. foreign policy. If you look back, for instance, at some of the key documents that led to the founding of RGA, and in terms of publicly available documents for instance, you could -- anyone who's interested could go online and find a document called Ensuring the Opportunity for Mutual Counsel and Collaboration, a product of the Religion and Foreign Policy Working Group at the State Department, published in October of 2012. That document contains language that implores the government to provide better guidance, legal guidance, on the applicability of the Establishment Clause, but doesn't question the fact that some kind of constraint would be appropriate.

 

            Similarly, to go outside of an official government document to a report that was heavily influential in government circles, the Chicago Council on Global Affairs had a task force on religion and international affairs that published a report in…oh, I'm not going to have the date in front of me…I believe 2010 called Engaging Religious Communities Abroad: A New Imperative for U.S. Foreign Policy. And again, this report of this task force sort of assumed that there was some constraint flowing from the Establishment Clause, but was totally unclear on what the nature of that constraint would be, and asked appropriate governmental bodies for clarification on that.

 

            It's worth noting that that Chicago Council report in a lot ways reads like a consensus document. The one piece where consensus was lacking among the task force's members was actually over this question. So there was a dissent signed by about a half a dozen of the task force's members, who argued essentially that the Establishment Clause should not be taken to apply at all to the conduct of foreign policy. And so that recommendation for more clear guidance was actually unnecessary. And then there was a response to the dissent from a smaller subset of the task force that essentially said, "No, the First Amendment and the Establishment Clause should clearly apply.

 

            There's a history of dispute over this. I would say in practice -- to get to what I saw at the RGA office for a few minutes before turning things over to questions. In practice, I think that by at least the end of 2016 and into 2017, both among political appointees but especially career staff at State -- staff within the Religion and Global Affairs Office, but also within the Office of Legal Advisor at State, there was actually sort of a rough working consensus that emerged that, first of all, the existence of this office was not problematic. There was some legal dispute over that at one point in time. But that it was appropriate for American diplomats to have an office that was tasked with analyzing religions impact on U.S. foreign policy and then empowering them, the diplomats, to respond to those effects. And that could involve not just working with diplomats to build their capacity, but also directly interfacing with religious actors of different kinds out there in the field.

 

            For any with an interest in how that office's guidance on what we frequently called religious engagement developed over time, I would point you to a non-classified document for general release called Religion and Diplomacy: A Practical Handbook that was cleared by sort of relevant State Department bodies for general circulation, and includes both a set of advice for how diplomats can assess the impact of religious factors on their foreign policy portfolios and then different engagement options for how they should respond.

 

            One thing, though, that a careful reader might notice if you track down this document—and I'm happy also to circulate this if anyone is interested—is that late in the document, there is a reference, not just a reference to, but a section on the Establishment Clause in which it takes a sort of generally appropriate -- that, again, the Establishment Clause applies in some way. But that was in those limitations. U.S. government employees, and here I'm quoting, "can and should engage with religious actors on the entire range of U.S. diplomacy and development objectives." And then it refers to a set of legal guidance from the Office of the Legal Advisor on how that engagement can or cannot proceed.

 

            Honestly, on that point in my view, the handbook isn't particular clear probably because the authors of the handbook didn't have the clearest set of rules from which to draw on, so it leave things fairly squishy in application, to use a precisely old term.

           

            Let me just give one example of how this played out in practice in the Office to sort of get a little more hands-on. So some on the call may be aware that one of the major challenges to not just governance and economic development but also to security in many parts of the developing world is corruption. Corruption has massive, negative impacts on economic growth in the developing world, but far beyond that there's also strong correlations between low-quality, local governance and the growth of violent extremist networks and criminal networks of various kinds.

 

            So combating corruption is a major priority of the U.S. government. And one country where there seems to be a particular window of opportunity for this a few years back was Nigeria with the election of a new president there who had publicly campaigned on sort of a good governance platform. Well, one thing that some of our diplomatic colleagues noticed over the course of these campaigns was that there was a religious network, sort of both Muslim and different Christian communities, in particular, who were engaging in sort of anti-corruption campaigning. And so colleagues of mine in the Religion and Global Affairs Office first got asked for some assessment by our diplomatic colleagues, essentially of who some of these religious actors were who were involved in anti-corruption work, whether they were religious actors who were actually not helpful when it came to corruption and may, in fact, be implicated in corrupt practices in different ways, essentially providing frontline diplomats, working-level diplomats, with high-quality analysis of how religious dynamics impacted this clear U.S. national security priority.

 

            After that initial assessment effort, or sort of a period of initial assessment, our office then worked in support of the Embassy and Consulate in Nigeria to develop an engagement strategy that would, through the Embassy and then the Consulate, bring local civil society groups who work on anti-corruption issues—tech guys, a lot of them, right? Sort of citizen-budget monitoring and that sort of thing—together with local religious leaders who may have strong moral authority but less of the technical expertise in how some of this programming gets carried out.

 

            After a series of sort of first-of-a-kind workshops where religious leaders, U.S. government officials, and local civil society organizations sort of exchanged best practices, there was a steering committee formed that eventually sort of crossed religious boundaries—it was an interfaith steering committee—and went on to then develop sermon guides, for instance, related to anti-corrupt practices, to hold trainings in religious congregations for citizen-budget monitoring, and a whole sort of raft of other particular engagement strategies.

 

            So that just gives you one sense of, in practice, one little sort of concrete example of a policy area where this approach to religious engagement played out. Now, could one be concerned about Establishment Clause issues in that context? Well, was the U.S. government dictating the religious content of sermons to either Muslim or Christian networks? No, in my experience, we were not. In fact, we were quite clear that we had absolutely no standing to develop such statements but wanted to support those on the ground who did. But was the U.S. government supportive of an initiative that was featuring local religious leadership very publicly and sort of helping those leaders to build media visibility and to build the strength of their coalition? Yeah, we were, in pursuit of a generally, I think, laudable foreign policy goal is combatting corruption.

 

            In practice, when the RGA Office worked well, that was a model that was replicated in a lot of other policies, spheres, and many places around the world. And I think that while we always had to work carefully with the Office of Legal Advisory at State, that over time those relationships really did strengthen, and we had a very positive working relationship with the career attorneys in the L Bureau that helped to navigate some of these ambiguities. But I wouldn't say we had clarity from above, necessarily. It was kind of a working-level arrangement that folks who worked with each other over a period of years had arrived at.

 

            Let me just close with a couple of questions. One that may be of interest to some on the call is that since I have left government, as part of Secretary Tillerson's famed redesign of the State Department, one thing that did actually happen as part of that is that the Religion and Global affairs Office and the International Religious Freedom Offices were merged with RGA being subsumed under the authority of the Ambassador-at-large for International Religious Freedom. Now, that in some ways is probably understandable; as a matter of bureaucratic efficiency, have one office. I don't know in practice how that merger is going to impact the ability of the two offices to fulfill their fairly different mandates. For me, this isn't actually a matter of constitutional law; it's a matter of effective bureaucratic organization and policymaking. Do the offices work best together or apart? But that is one change that has happened in the past year that's worth being aware of.

 

            A second question, and I'll just close with this, is that in my experience the biggest constraint on our activity in RGA was not concerns about the Constitution but concerns about the practical effectiveness of policy choices. In other words, when it came to, for instance, potentially funding religious actors to engage in messaging to run counter to certain kinds of extremists or something like that, honestly, I didn’t experience the major constraint there being, "Well, we won't get the Legal Affairs Bureau to sign off on this. We can't do it. The Establishment Clause says no." I experienced the constraint being is this likely to be effective policy? Is this likely to result in unintended consequences? Will our partners be delegitimized by cooperation with the U.S government? Does the U.S. government have standing to be involved in this kind of work? And is this the most effective way to go about pursuing U.S. national interests?

 

            It's not to say that the constitutional issues aren't important because I think that they are. But I do think that, at least in my personal experience or on a day-in and day-out basis, those questions about the effectiveness of policy formation when it came to religion and also sort of avoiding unintended consequences, especially when it came to intervening in overseas religious debates, were really at the front of policymaker's minds, both in Washington and out at our embassies and posts. And those are questions that are at least a half a step removed from some of the foundational, kind of, constitutional questions that are motivating this call.

 

            So I'll just leave it at that for now and happy to open it up for conversation.

 

Prof. Justin Walker:  Well, thanks a lot, David. That was fantastic as well. I'd like to open it up for audience questions. If the audience is like me, they've got several questions or multiple questions that they want to ask. If by some chance they don't, then I'm happy to ask some questions that I was wondering about before the call, and then also some questions that have been raised by Nate and David's great comments. So, Wes, do you know if there are any calls, any questions?

 

Wesley Hodges:  Let's go ahead and open the floor to see if anyone has any questions. No immediate questions, so, Justin, do you have one?

 

Prof. Justin Walker:  Yeah, absolutely. So I guess this question will go to Nate and to David and something that David said made me think about this. David was talking about how there is something of a consensus that it would be constitutional, it would not violate the Establishment Clause, to have a totally secular goal like fighting corruption and then to work with religious actors overseas who can assist in that. What do you all think, if you can't speak for yourself then what do you kind of think that the consensus in the government or the courts is, with regard to a goal that is somewhat less purely secular? So here's what I'm thinking. If the State Department or the Defense Department were to look at Pakistan and see a lot of radical Muslim madrassas and think, you know, it would be nice if some kids in some of these communities had an option to go to a school that taught a more moderate form, a moderate approach to Islam. So there's a religious leader in this Pakistani town and he wants to start a religious school but it's going to be a moderate Muslim school. This is in our national security interest, maybe. What do you think the consensus is in the courts and in the government on whether or not the First Amendment Establishment Clause would preclude the U.S. government providing some funding for that school?

 

Nathan Forrester:  This is Nate Forrester. I would not say that there is anything approaching a consensus in the courts because the issue just doesn't come up much. Speaking for myself and for nobody else that matters, I think given the caution in that footnote from the Lamont case that I mentioned where the Mansfield article addressed almost precisely that scenario, suggested that might still be a problem, I think it would be, at least based on that one data point, there's likely to be a reluctance to go down that road. But I don't want to pretend that I'm speaking for anybody on that thought. That's a question that, I think, remains unresolved that was effectively dicta in Lamont. They remanded for the district court to take that case further and then there was ultimately a settlement reach, the terms of which I'm not familiar with so I don't know what all came out of that case exactly in terms of USAID policy.

 

            You're also asking a question that seems to implicate, to some extent, the extent to which the entanglement prong of the Lemon test, which has since been reduced to being merely one of the effects that can be called a violation of the Establishment Clause to occur, whether that applies at full strength overseas, I do have a sense that that entanglement prong would have to not apply at full strength. I don't know how the U.S. could be expected to carry out anything approaching an effective foreign policy if it were not more involved with religious organizations and might be comfortable doing in this country. I mean, the foreign policy you have to take, to a certain extent, countries as you find them with the political systems and institutions they have in place. Some countries just aren't going to have the kind of separation that we routinely have here and the mediating institution that you're going to need to work with in order to carry out these programs effectively is going to entail something that would look more like entanglement, although in the domestic context. So I think at least to that extent, there'd be a somewhat tamped down Establishment Clause inquiry. But I'd be hesitant to say that the U.S. government could get into actually programs that seek to promote a particular strain of thought among a religious group.

 

David Buckley:  Yeah, I mean maybe if I could just sort of briefly come in with kind of a complementary perspective to that. I think that in practice one of the things that I worry about with this idea of that sort of strength of the application of different test associated with the Establishment Clause may depend on the strength of the foreign policy interests at stake is it's so much of the impetus—not all of it, but so much of it behind sort of increasing our sophistication about religion and foreign policy is driven by security concerns, right, which is where the scope of the interests or the strength of the interests are generally seen to be strongest.

 

            And so I just don’t know, practically, if that would actually as a sort of scoping condition really rule out all that much because it seems to me -- yeah, you might lose the argument, but it seems to me you could always make the argument that, look, no, you may think that this is about indoctrinating kids, but this is actually how we've chosen to pursue a core security interest of—the core security interest—of the United States. And yes, this may look like it's three steps removed from that, but all of the evidence indicates that that's actually where the work has to happen.

           

            So I'm just not sure how much in practice of a limiting effect that that approach would have on what could or get put into practice abroad.

 

            As sort of a second piece to that, Justin, I think that my concern—and, again, I think the kinds of concerns that I tended to hear from career program implementers and diplomats—about that kind of an approach in practice were not constitutional. They were fairly pragmatic. In other words, it might be all well and good if local organic conditions encouraged these kinds of schools to emerge and we would be well served by that. But in practice, what's the likelihood that we're going to be able to pull off promoting that kind of a network without discrediting the people that we're working with, without provoking violence against those individuals, without exacerbating rivalry between local religious leaders, et cetera, et cetera, right? But, again, those are not sort of first order constitutional concerns. Those are kind of second order pragmatic calculations. But that's where I heard more of the deliberation and more of the objections being raised to programs like that.

 

Nathan Forrester:  David, could I ask a question? I definitely hear what you're saying about security interests being something that may not in the end have as much of a constraining effect as one might think. I'm curious, you mentioned that task force dissent where some took the view that the Establishment Clause didn't apply at all to exercise a foreign policy. What sort of authority do you recall did they cite for that position? How did they argue that position?

 

David Buckley:  That is a good question. It is a less-than-one-page dissent. And on a quick look here, I actually don’t see a footnote to, sort of, legal authorities, and I don’t believe that any of the signers are attorneys. There are five individuals who signed it, and I believe that all of them are -- I mean, they're very accomplished individuals, but I don’t believe that any of them are attorneys.

 

Nathan Forrester:  Yeah, but coming at it more from the [practice] perspective that you were suggesting tends to dominate?

 

David Buckley:  Yeah. I'm happy to send it your way, but on a quick read, here, through that dissent, they are not explicitly, sort of, writing a law review note.

 

Nathan Forrester:  Yeah.

 

Wesley Hodges:  Excellent. Well, we do have two questions, now, in the queue. If everyone's ready, we'll move to our first audience question.

 

Caller 1:  Thanks very much for this fascinating panel discussion. I was particularly interested by the connection made between border corrupt processes acts, violations or corruption issues, and extremism. But I'm wondering if any of the panelists could develop that a little further because that doesn't -- the economic problems that you pointed to don’t seem to fully explain, for instance, radical Islamic extremism.

 

David Buckley:  I can take that just briefly. I mean, I should preface this by saying I am not any sort of terrorism expert or CVE or whatever you want to call it, so take that -- I am a political scientist. I know that literature to an extent, but take it with a grain of salt. As I understand that literature, it's not about straight economic deprivation, right? So in other words, you're right, that the causal argument isn't poor people become terrorists, but that it is about social exclusion and frustration with, sort of, normal channels of political participation that correlates with experiences of corruption. And so, in other words, the problem with corruption isn't just that it makes people poor, although it does, it's also that it drives people to extra institutional political participation. Let's put it that way, including to sort of extremist political behavior. So that's a sort of short answer, and I'm sure I'm not doing justice to the literature in its totality, but I think that's kind of the core of what the argument looks like.

 

Wesley Hodges:  Thank you, caller, for your question. Let's go ahead and move to the second question in our queue.

 

Caller 2:  Thank you. I believe that there is an ongoing program by the American government to help religious leaders develop social media materials to counter Islamic extremism. And I was wondering if that would be any different than the example that you gave with the Pakistani moderate school?

 

Nathan Forrester:  Well, it's hard to say in the abstract without knowing more about the program and I have to be very careful not to comment on any -- the legality of any current programs. So I'd be hesitant to get too much into weeds about that. It definitely gets into similar issues and similar analytical framework. And I'll just leave it at that.

 

David Buckley:  Yeah, I do know, just to briefly respond from my point of view outside of government, now, yeah, there have been a range of attempts to sort of engage the war of ideas through social media and online in general. And I think there's been debates about how effective those have been, but I know a range of those kinds of programs are in practice. And so my sense is that since they're in existence, they've at least, at the working level, been deemed appropriate by the State Department and the other agencies that are involved in them. And, again, my understanding is, for instance, like the Global Engagement Center at the State Department, that this is not a Trump administration decision. These are things that -- this is something that stretches back farther into the Obama administration as well. Yeah. But not exactly where I worked at State so I don't think I can comment on it in too much detail anyway.

 

Wesley Hodges: Thank you, caller, for your question. The queue is empty now and just looking at the clock it seems that we're almost done with our hour. I want to turn it back to Justin. Justin, is there anything that you'd like to finish by asking or any remarks you'd like to make before we end the call today?

 

Prof. Justin Walker:  My only remarks are just to give a huge thank you to Nate and Dave for sharing their time and their expertise. I have learned just a great amount in the past hour. And I hope that some of the callers have as well.

 

Wesley Hodges:  Wonderful. And Dave and Nate, do you have any closing remarks before we finish?

 

David Buckley:  No, not in particular. Thanks for the invitation. Yeah.

 

Nathan Forrester:  No. Just, I mean, these are, in many ways unsettled and very difficult issues from a legal standpoint and anything that you say in this area is provisional.

 

Wesley Hodges:  So on behalf of The Federalist Society, I'd like to thank our experts today for the benefit of their valuable time and expertise. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining. This call is now adjourned.              

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.