Balkinization  

Thursday, May 31, 2007

The good of “religion in general.”

Andrew Koppelman

In order to offer a coherent account of the religion clauses, I argued in an earlier post, it is necessary to define the Establishment Clause less abstractly than the Court has, in order to permit the special treatment of religion that is mandated by the Free Exercise Clause. I then argued that the answer is, as Justices Rehnquist, Scalia, and Thomas have suggested, that the state may promote “religion in general.” But, I argued, their solution needs modification, because their identification of religion with monotheism is naïve. Religion must be understood more abstractly than this. How ought this to be done?

Religion is a category that is hard to delimit. Most of the best treatments of the problem of defining “religion” for constitutional purposes have concluded that no dictionary definition will do, because no single feature unites all the things that are indisputably religions. Religions just have a “family resemblance” to one another. In doubtful cases, one can only ask how close the analogy is between a putative instance of religion and the indisputable instances.

Any solution to the free exercise/establishment dilemma that allows accommodations must permit the state, at some level of abstraction, to recognize the value of religion. Thus far Scalia is correct. In order to avoid the problem of sectarian preference, however, religion must be understood in a more abstract way than Scalia proposes. This difficulty can be handled in the following way.

Begin with an axiom: The Establishment Clause forbids the state from declaring religious truth. One principal reason why it is so forbidden is because it is incompetent to determine the nature of this truth. Madison wrote that the idea “that the Civil Magistrate is a competent Judge of Religious Truth” is “an arrogant pretension falsified by the contradictory opinions of Rulers in all ages.” The idea of state incompetence is reinforced by evidence that that state sponsorship tends to diminish respect for religion.

This incompetence entails that the state may not favor one religion over another. It also bars the state from taking a position on contested theological propositions, such as whether God exists. (There is an exception for ceremonial deism, confined to public rituals of long standing whose religious content is sufficiently bland, but in its nature this exception cannot permit any new instances.)

A second classic reason for barring the state from declaring religious truth is civil peace: In a pluralistic society, we cannot possibly agree on which religious propositions the state should endorse. The argument for government agnosticism is that, unlike government endorsement of any particular religious proposition, it is not in principle impossible for everyone to agree to it. Nonestablishment makes possible what John Rawls calls “civic friendship,” in which citizens share a conception of justice that all can reasonably be expected to accept, despite their widely differing moral, philosophical, and religious beliefs.

A final reason for getting the state out of the religion business is that the individual’s search for religious truth is hindered by state interference.

It is, however, possible for the state, without declaring religious truth, to favor religion at a very abstract level. The Court noticed this in Texas Monthly v. Bullock when it invalidated a law that granted a tax exemption to theistic publications, but not atheistic or agnostic publications. Justice Brennan’s plurality opinion thought that a targeted exemption would be appropriate for publications that “sought to promote reflection and discussion about questions of ultimate value and the contours of a good or meaningful life.” Justice Blackmun thought it permissible for the state to favor human activity that is specially concerned with “such matters of conscience as life and death, good and evil, being and nonbeing, right and wrong.” What is impermissible is for the state to decide that one set of answers to these questions is the correct set.

The precise character of the good being promoted is itself deliberately left vague, because the broad consensus on freedom of religion would surely collapse if we had to state with specificity the value promoted by religion. “Religion” denotes a cluster of goods, including salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists), responding to the fundamentally imperfect character of human life (if it is imperfect), courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps), contact with that which is awesome and indescribable (if awe is something you feel), and many others. The establishment clause permits the state to favor religion so long as “religion” is understood very broadly, forbidding any discrimination or preference among religions or religious propositions.

This understanding makes it possible to defend accommodations without running into the free exercise/establishment dilemma. The state is recognizing the value of religion, but it is making no claims about religious truth. It is the making of such claims that violates the establishment clause. But it is possible to use the term “religion” intelligibly without making such claims. We don’t have a precise definition because we don’t want one. The vagueness is deliberate, and it is wise.


Comments:

But it is possible to use the term “religion” intelligibly without making such claims. We don’t have a precise definition because we don’t want one. The vagueness is deliberate, and it is wise.

At this level of abstraction, how does one know that it is "religion" which the state is accomodating, rather than "merely" philosophy or Weltanschauung?
 

Professor Koppelman: In response to the first in this line of posts, I disputed your assumption that a broad solution to the dilemma you percieve is "necessary." The more of your writing that I read, the less convinced I become of that necessity. I concede that allowing free exercise of religion will at times require accomodations and, if taken too far, those accomodations could become inappropriate governmental endorsement of religion. But how often does this problem actually rise? The tenets of most religions coincide with secular needs to promote the public welfare. I expect that these accomodations are rarely needed, and when they are necessary they can be accomplished in ways that don't involve governmental endorsement of religion. In the rare situations where actual conflicts arise, the competing needs can be balanced by the courts on a case by case basis.

I have come to harbor a suspicion that you are engaged in a fundamentally disingenious exercise. You seem to attempt to create a dilemma, where none truly exists, in order to justify eroding the Establishment Clause. For some reason, you seem to think it desirable that our government be permitted to endorse religion as long as it is done in a nonsectarian manner.

Sir, you have proposed a cure far worse than the disease you purport to diagose.
 

From the post: "The idea of state incompetence is reinforced by evidence that that state sponsorship tends to diminish respect for religion."

What evidence? If there is such evidence, then maybe I should support state sponsorship of religion.
 

QuiteAlarmed asks: But how often does this problem actually rise?

At first I thought this might be a mountain-out-of-a-molehill issue. But then I thought about my friends, the Quakers, and their success as conscientious objectors. Despite being ordained in an ostensibly Christian faith I would, in all honesty, describe myself first and foremost as an agnostic in the very literal sense that I don't think we can really know much about that which religion claims to assure us (no, this has not hindered me in my occasional ministerial counseling; mature faith stands undismayed by uncertainty.) I could betray my principles and claim a certainty I do not in truth have, thereby getting Conscientious Objector status. Or I can hold to my principles and get sent to the front. That isn't really how things should work, is it?

In a volunteer army perhaps this happens less often than during the draft era. But even today there are enlistees who would like to serve but do not believe in killing and try to get assurances from their recruiters that their religious prohibitions on killing keep them from the front. But if, by contrast, I were to try to enlist and say that as an agnostic I hold killing to be anathema to principle, I doubt that would avail me much.

Bottom line is there are matters of life and death which right now, today, are playing out in favor of the religious at the expense of the honestly non-religious. There is no believing the Constitution was meant to accommodate such injustice.
 

"This incompetence ... bars the state from taking a position on contested theological propositions, such as whether God exists."

So would the Declaration of Independence, and the many state-constitutional preambles that presuppose God's existence, and Zorach v. Clauson (our "institutions presuppose a Supreme Being"), all run afoul of that principle? None of them were empty rituals when enacted.
 

Robert Link: But then I thought about my friends, the Quakers, and their success as conscientious objectors.

I was raised as a member of the Religious Society of Friends (i.e., Quaker) myself. Rather than disprove my point, conscientious objector status provides an example of free exercise being accommodated without government endorsement of religion. Conscientious objection can be based on moral, ethical or religious beliefs, so long as those beliefs are deeply held. If you deeply believe that all forms of war are immoral or unethical, then you are eligible, even if you are an agnostic or an atheist.

Further, even if we could identify situations where accommodation of free exercise cannot occur without government endorsement of religion, that situation would justify only a solution narrowly tailored to that dilemma. I see no reason why solving a dilemma about accommodating free exercise should justify modifying our understanding of the Establishment Clause when it is applied to questions like governmental displays.
 

"If you deeply believe that all forms of war are immoral or unethical, then you are eligible, even if you are an agnostic or an atheist."

In other words, if you hold the belief in the way that religious beliefs tend to be held -- rigidly, as if the belief were mandated by a higher power who cannot be questioned -- then you are eligible for conscientious-objector status. If, by contrast, you thoughtfully consider the facts about a particular war and conclude that that war is immoral, but do not hold a religious-type belief about all wars, then you are not entitled to conscientious-objector status. Our Constitution, in other words, favors irrational beliefs over rational ones (which is not to say that a belief that war is always wrong is necessarily irrational, just that it is not generally based on reason).
 

I'm going to decline the invitation to debate, in this thread, the rationality of opposition to all forms of war. Suffice it to say that I consider governmental determinations on what moral, ethical or religious beliefs people may rationally hold to be one of the chief evils against which both the Establishment and the Free Exercise Clauses protect us.
 

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