More on infrastructure and religious freedom

JB

Rick Garnett's response to my post on the infrastructure of religious freedom suggests a possible source of disagreement between his position and mine: "Sometimes, the government may single out religion for special treatment -- i.e., because it is religion -- without "establishing" religion or violating the freedom of religious conscience."

I am not yet sure we have a disagreement. It all depends on what Rick's formula means. I think he may be running together infrastructure building with accommodation.

If the state removes a disability created by a law of general application; for example, if a dry county allows the use of sacramental wine in religious services, or if Congress exempts religious organizations from Title VII's ban on religious discrimination in hiring, this does not necessarily violate the Establishment Clause. There are many close cases, but the general principle seems clear enough.

But accommodation of religion in these examples is not the same thing as building infrastructure specifically to promote religion. As I suggested in my previous post, it would violate the Constitution for the government to fund religious proselytization specifically in order to increase the number of religious believers in the United States, although it is perfectly constitutional for the government to fund science education in order to increase the number of scientists. I don't understand Rick to argue the contrary. If he does, then we do have very different views of the Establishment Clause.

Can government engage in policies directed specifically to promote religion and religious belief among its population rather than policies that promote the general exchange of ideas (and therefore also benefit religion)? I do not believe that it can. I believe that if the government stated that it was launching a pro-atheism campaign designed to increase the number of atheists in the United States this would run afoul of the Establishment Clause. I do not see why the government could engage in campaigns specifically designed to increase the number of religious believers or the strength of religious institutions per se (that is, to the exclusion of other types of institutions). It seems to me that the government may not single out religion for special forms of infrastructural building, but that it may promote speech, expression, the exchange of ideas, and charitable organizations generally; among the main beneficiaries of such infrastructural building would seem to be religious organizations.

If Rick could provide an example of government deliberately building infrastructure for the benefit of religion alone-- and in order to strengthen religion-- that (1) is not accommodation or exemption from a statute of general applicability and (2) does not violate the Establishment Clause, it would be much easier to see where, if at all, we actually agree or disagree.
Posted 2:49 PM by JB [link]