Is religion any good?

Andrew Koppelman

The recent exchange between Rick Garnett and Jack Balkin on state support for religion brings to mind a familiar puzzle. In what sense, if any, is it permissible for the state to treat religion as a good thing?

Let me focus the problem a bit more. The Supreme Court has declared that, under the Establishment Clause of the First Amendment, “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” The Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.” This generates a puzzle. It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as in tension with itself. Call this the free exercise/establishment dilemma.

The dilemma is pressing because religion is ubiquitously given special treatment. A classic case is Quakers’ and Mennonites’ objections to participation in war, which has been accommodated since Colonial times. But there are plenty of other cases. Persons whose religions place special value on the ritual consumption of peyote or marijuana (or wine, during Prohibition) seek exemption from drug laws. Landlords who have religious objections to renting to unmarried or homosexual couples want to be excused from antidiscrimination laws. Churches seeking to expand sometimes want exemption from zoning or landmark laws. The Catholic church wants to discriminate against women when ordaining priests. Jewish and Moslem prisoners ask for Kosher or halal food. These scruples have often been deferred to, and religious objectors have frequently been exempted from obligations that the law imposes on all others. (There is considerable dispute about whether the decision when to accommodate ought to be one for legislatures or courts, but that debate rests on the assumption, common to both sides, that someone should make such accommodations.)

The problem is clearly presented by Jack’s challenge to Rick to offer any state support for religion other than accommodations from generally applicable laws. Rick conceded the strength of the point, but notice how important accommodations are. Religious people are not entitled to any special treatment, except that they get exempted from laws that everybody else has to obey. The exception has a rule-swallowing tendency that shouldn’t go unnoticed.

The sentiment in favor of such accommodations is nearly unanimous in the United States. When Congress enacted the Religious Freedom Restoration Act, which attempted to require states to grant such exemptions, the bill passed unanimously in the House and drew only three opposing votes in the Senate. After the Supreme Court struck down the Act as exceeding Congress’s powers, many states passed their own laws to the same effect. Each of them raises the same dilemma. If government must be neutral toward religion, then how can this kind of special treatment be permissible?

One solution to the clash would be to say that the Free Exercise Clause states an exception to the Establishment Clause’s rule. Unless it is somehow bounded, this exception would, however, threaten to swallow the rule altogether. As Justice O’Connor has observed, “judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an ‘accommodation’ of free exercise rights.”

Another approach to reconciling the two clauses would be to define free exercise as minimally as possible. Even the narrowest definitions proposed would, however, forbid deliberate discrimination against religion. That in itself is a kind of special treatment. Most nonreligious beliefs do not and cannot receive such protection. The Free Exercise Clause simply cannot be redefined in a way that is consistent with the broadest possible reading of the Establishment Clause.

It is therefore necessary to revise our understanding of the scope of the Establishment Clause. The most promising approach is 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.

Is there a way to do this? I have offered an answer in some writings that can be found here and here, and I will try to summarize that answer in future postings. Today I just want to insist on the problem. Unless there is some sense in which it is consistent with the Establishment Clause for the state to treat religion as a valuable thing, the religion clauses are indeed incoherent.