Marshall

Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom

Crosspost from Balkinization

What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea.  Here it is:  Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities.  The Jacobins were wrong.  In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.

The contributions to the volume dealing with politics, democracy, and expression – in particular, the essays written by Robert Post and Yochai Benkler – are sensitive to the structures through which we participate in politics and engage in protected, democracy-enhancing speech.  They are attentive, in other words, to the infrastructure that is required for the exercise and maintenance of cherished freedoms. 

Well, like the freedom of speech, religious freedom has and requires an infrastructure.  Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience.  The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them.  The values and goods that the First Amendment’s Religion Clauses are today understood to embody and protect—and, we can usefully refer to this cluster of goods and values as “religious freedom”—are well served by a civil-society landscape that is thick with religious institutions and associations, and by legal rules that acknowledge and capture their importance.  These institutions contribute to—they do not only benefit from, and they are not only protected by—the reality of religious freedom under law.

The theories and doctrines we use to understand, apply and enforce the First Amendment’s religious-freedom provisions should reflect and respect this fact.  They should not be constructed solely to deal with the problems that were the focus of the thoughtful essays on religious liberty contributed by Noah Feldman and Bill Marshall, namely, the task of identifying the bounds of permissible religion-regarding spending or expression by government.  Religious liberty, fully understood, involves not only the immunities of believers but also what was once called “the freedom of the church.”  And, as Feldman and Marshall explain, the separation of church and state involves legal arrangements and constitutional constraints whose point is not so much to artificially exclude religious faith from our civil and political lives as to respect religious institutions’ independence and autonomy.

In my view, if we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Chip Lupu and Bob Tuttle once put it, whether “religious entities occupy a distinctive place in our constitutional order.”  I believe they do, and should.  Today, though, American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals’ rights, beliefs, consciences, and practices.  The distinctive place, role, and freedoms of groups, associations, and institutions are often overlooked.  This pattern is consistent with the widespread assumption that, because the individual religious conscience is and must be free, religion itself is entirely private.  However, an understanding of religious faith, and religious freedom, that stops with the liberty of conscience, and neglects institutions and communities, will be incomplete.  And, so will the legal arrangements that such an understanding produces.

Indeed, it could be that the Supreme Court’s Religion Clauses doctrine is famously confused and confusing, not because religion is inherently “divisive,” not because scholars disagree about the content and relevance of the First Amendment’s original meaning, and not because that doctrine is the product of changing groups of judges, appointed by Presidents of different parties, with a range of values and commitments.  Instead, it could be that our constitutional doctrine and our thinking about religious freedom under law do not reflect, capture and translate very well the importance of particular institutions in the constitutional order and to the values that the First Amendment should serve.

Now, how does the infrastructure of religious freedom work?  How, exactly, do churches (and the like) shore up (and not just find shelter within) the freedom of religion?  It is clearly not by supplanting the freedom of the individual religious conscience as the ultimate beneficiary of religious freedom under law.  Quite the contrary.  As I have spelled out in more detail elsewhere, the existence and independence of religious institutions long served, and is still needed today, as – in John Courtney Murray’s words – the “social armature to the sacred order,” within which the individual human person could be “secure in all the freedoms that his sacredness demands.”

Of course, the days are long gone – and 2020 will not bring them back – when we could speak of the Church as the chief rival to, check upon and sometimes close partner with the State.  Today, in our religious-freedom doctrines and conversations, it is likely that the independence and autonomy of churches, and of religious institutions and associations generally are seen as deriving from the free-exercise or conscience rights of individual persons rather than as providing the basis for the exercise of those rights.  (Indeed, many would say, and perhaps celebrate the fact, that institutions are becoming less important to our religious, or “spiritual,” lives.)  It remains the case, though, that the existence and independence of religious institutions are needed to – quoting Murray again -- “check the encroachments of secular power and preserve [the] immunities” of our “basic human things.”  Murray was right to worry that the individual conscience, standing alone, is not up to the task of creating and sustaining the conditions necessary to ensure religious freedom; it is not, as he put it, “equal to the burden” of serving as the “sole authentic mediator of moral imperatives to the political order” and the “keystone of the modern experiment in freedom.”  An institutional approach to the Religion Clauses – an approach that is consistent with the reality of increasing pluralism and should therefore be attractive to progressives --  would recognize this worry, and have responding to it as its chief aim.

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Richard W. Garnett is Associate Dean and Professor of Law at the University of Nortre Dame Law School. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Paul Horwitz (The University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").
 

Religion and Division

Crosspost from Balkinization

A particular narrative has, for many years, informed and shaped both our thinking about the meaning and purpose of the First Amendment’s no-establishment-of-religion rule and the construction-by-courts of the doctrines, standards, and tests used to enforce that rule. The narrative goes something like this: Europe suffered through many years of war, persecution, and political turmoil, in large part because of the failure to appropriately separate church and state, religion and politics. As Madison put it, in the Memorial and Remonstrance, “[d]uring almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” Our Founders learned from this experience, the narrative goes, and so sought to guard against “divisiveness” in politics by privatizing religion.

Obviously, there is something to this narrative. As I have tried to explain in more detail elsewhere, though, I believe it is a mistake – one that for several decades misshaped our constitutional doctrines and debates and one that “progressives” and “conservatives” alike should want to see abandoned well before 2020 – to think that observations or predictions of “divisiveness” should have any significant place either in the judicial enforcement of the no-establishment rule or in citizens’ participation in what Jack Balkin calls the broader “tradition of redemptive constitutionalism.” After all, and to quote Madison again, “[l]iberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”

Noah Feldman and Bill Marshall contributed thoughtful essays to The Constitution in 2020 on the challenge of “protecting religious diversity” through our Constitution. I agree with much – most, in fact – of what they wrote, notwithstanding the fact that the “constitutional vision” developed and defended in the volume is, for the most part, not my own. This short comment is not intended as a criticism, or even a direct response, to their essays. It was, instead, merely prompted by what seemed to me to be each scholar’s embrace of the idea that the First Amendment was designed to be, and should be, understood and enforced with an eye toward avoiding or soothing “divisiveness.” (Professor Feldman, for example, follows Chief Justice Burger – and, more recently, Justice Breyer – in stating that a no-money-to-religion rule can be justified “on the ground that debates over government funding are likely to lead to political polarization – an especially great risk in our vibrantly diverse society.”)

In my view, though – and in John Courtney Murray’s words – we should “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.” Pluralism, Murray thought, “is the native condition of American society” and the unity toward which Americans have aspired – e pluribus unum – is a “unity of a limited order.” As I see it, those who crafted our Constitution believed that both authentic freedom and effective government could be secured by harnessing, rather than homogenizing, the messiness of democracy.  It seems both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people and, perhaps, best regarded as an indication that society is functioning well, and engaging in precisely the “larger dialogue” and “conversation” for which The Constitution in 2020 calls.

Roberto Unger suggested, more than a decade ago, that one of the “dirty little secrets of contemporary jurisprudence” is its “discomfort with democracy.” And, in a similar vein (though not with regard to the Establishment Clause), Rick Pildes has voiced the worry that “in the political realm, judges and others cling . . . tenaciously to the fear that too much politics, or too competitive a political system, will bring instability, fragmentation, and disorder.”  In my view, our thinking about religious liberty and church-state relations, and about the role of courts in protecting that liberty and policing those relations, should not – today or in 2020 -- be affected or colored by this “fear.”
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Richard W. Garnett is Associate Dean and Professor of Law at the University of Nortre Dame Law School. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Paul Horwitz (The University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

C2020 in The New Yorker

In this week's New Yorker, Jeffrey Toobin draws on The Constitution in 2020 to illuminate President Obama's (unique? idiosyncratic? pragmatic?) approach to the courts and the judicial appointment process. Toobin raises important questions about the role judges have played and should play in reform movements, all while suggesting - echoing several contributors to The Constitution in 2020 - that the new frontier for change may not be the courts, but popular politics.

Two Questions for the Establishment Clause

In different ways, Noah Feldman and William Marshall critique the received liberal wisdom concerning Establishment Clause jurisprudence.  Feldman argues that we should adopt the “no money, no coercion” principle of the Founders.  This means the government should reduce religious groups’ access to public funds through faith-based social service or school voucher programs, but become more tolerant of symbolic, non-coercive public endorsements of religion, such as Ten Commandments displays.  Meanwhile, after surveying the values and shortcomings of secularism, Marshall concludes that government should allow religious groups to receive funding, under certain conditions, but should be diligent in preventing new public endorsements of religion.

Two important practical questions emerge from these pieces.  First, to what extent, if any, should religious groups who perform social services be eligible for public funds?  Second, how should we understand the relationship between symbolic endorsement of religion and coercion?

To my mind, Marshall offers a more compelling answer to the funding question.  There is no reason to think that the Founders’ “no money” admonition was meant to put religious groups at a disadvantage compared to non-religious groups.  As Feldman acknowledges, the Founders feared that taxation for religious purposes violated the conscience of those who believed differently.  But, in a modern welfare state in which taxes fund a wide range of controversial ethical and economic endeavors, equal treatment should guard against religious groups being uniquely excluded from funding.  Feldman recognizes that these changed circumstances might lead us to reach different conclusions than the Founders, but he suggests we should, nevertheless, avoid funding religious organizations because competition for the government’s largesse is likely to result in political polarization.  It is far from certain, however, that excluding faith-based groups altogether will not simply lead to political polarization of a different sort.

Marshall rightly notes that, as long as religious groups are not exempted from generally applicable regulations, and as long as state funding does not go to purely religious activity, there does not appear to be any constitutional problem with government funding religious groups that perform public functions.  President Obama seems to agree.

The most relevant question for the symbolism debate is whether or not the state can be effectively neutral between competing conceptions of the good.  If one believes there is a neutral space the government can occupy, then all public symbolic endorsement of religion should be avoided.  If public endorsement of religion persists, even though a neutral alternative exists, it is reasonable to suspect coercive intentions are at work.  If we conclude, however, that the government cannot be genuinely neutral, there seems no principled way to exclude only religious symbols from the public sphere.  To do so, as Feldman observes, is to discriminate against religious perspectives in favor of non-religious ones. 

Marshall is at least as effective as Feldman in diagnosing the shortcomings of secular neutrality, but his greater concern over the coercive potential of religious symbols leads him to conclude that government should not endorse religion, unless the endorsement is part of a benign and longstanding tradition.  Marshall’s conclusion might seem practically appealing, but his distinction between old and new religious symbolism is problematic.  If the state cannot be neutral, which Marshall concedes, why should religious groups who seek public endorsement be denied the same opportunities available to non-religious groups?  Marshall understandably worries about the coercion that could result if certain religious groups capture government interests and then exclude other perspectives, but he fails to appreciate fully that symbolic endorsement, unlike public funding, is not always a zero-sum game.  Whether enacting a local holiday, hanging a plaque at the courthouse, or displaying an exhibit at a public mall, there are many creative ways for the state to endorse religious symbols without it resulting in chaos or coercion.

The good news here is that we, as progressives, can be friendly to religion without compromising our core principles.  In fact, strict secularism, of the sort Marshall and Feldman dismiss, runs counter to progressive values of equal treatment and respect.  In a happy coincidence, the current political climate is a hospitable one for progressives who are open to religion.  We should embrace this political reality with the knowledge that our constitutional and philosophical principles are safe.

 

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