Religion isn’t that good

Andrew Koppelman

I argued in a previous post that, in order to offer a coherent account of the religious clauses, 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.

Among the members of the Supreme Court, Justice Scalia has pursued this strategy most assiduously. The solution he and others have proposed is to read both clauses at a much lower level of abstraction than the Court has read them. Justice Scalia, Chief Justice Rehnquist, and Justice Clarence Thomas have all suggested that the Establishment Clause should be read only to prohibit favoritism among sects, while permitting states to favor religion over irreligion. Of this group, Justice Scalia has offered the clearest formulation of the alternative rule:

“[O]ur constitutional tradition . . . rule[s] out of order government-sponsored endorsement of religion . . . where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).”

Justice Scalia’s logic is powerful. He reasons as follows: The Free Exercise Clause singles out religion as such for special benefit. Therefore, it is not possible to coherently read the Establishment Clause as prohibiting the singling out of religion as such for special benefit. “What a strange notion, that a Constitution which itself gives ‘religion in general’ preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general.” It must, then, be permissible for the government to favor religion as such. Accommodation, however, must not be sectarian; accommodations, if granted, must be extended evenhandedly to differing theisms. Thus Justice Scalia’s revision would free the Court’s reading of the religion clauses from self-contradiction.

More recently, in McCreary County v. ACLU, dissenting from a decision barring one ceremonial display of the Ten Commandments, he frankly acknowledged that ceremonial theism would entail “contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.” The Commandments “are assuredly a religious symbol, but they are not so closely associated with a single religious belief that their display can reasonably be understood as preferring one religious sect over another. The Ten Commandments are recognized by Judaism, Christianity, and Islam alike as divinely given.” Justice Stevens noted that “[t]here are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.” Scalia (here joined by Rehnquist, Thomas, and Kennedy) retorted that “The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not).” Justice Scalia thus envisions a role for the Court in which it decides which articles of faith are sufficiently widely shared to be eligible for state endorsement (and in which judicial ignorance is a source of law!). Evidently, the state may endorse any religious proposition so long as that proposition is (or is believed by a judge unacquainted with doctrinal niceties to be) a matter of agreement between Judaism, Christianity, and Islam. It would, for instance, be permissible for the state to declare that Gabriel is the most important of the archangels. The interpretation of the establishment clause would then depend on the further development of the Moslem idea of the People of the Book – those who have received a revelation that is deemed (formerly by the Koran, now by the Supreme Court) to be reliably from God.

Scalia’s solution will not work, because it discriminates among religions. Chief Justice Rehnquist thought that the establishment clause forbids “asserting a preference for one religious denomination or sect over others.” Justice Scalia agrees: “I have always believed, and all my opinions are consistent with the view, that the Establishment Clause prohibits the favoring of one religion over others.” Not all religions involve a belief in “a benevolent, omnipotent Creator and Ruler of the world.” Scalia’s formulation does discriminate among religions. Christians, Jews, and Moslems are in; Hindus, Buddhists, and atheists are out. And the outs are a lot of people. Justice Scalia defended his approach by noting that the monotheistic religions “combined account for 97.7% of all believers.” But it is difficult to see how statistics support endorsement at just the level of abstraction he proposes: official Christianity isn’t permissible, but official monotheism is. In a nation of 300 million, there are only 5,764,000 Jews, and 4,657,000 Moslems. There are 1,144,000 Hindus, 1,424,000 atheists, and 2,721,000 Buddhists. Will the Establishment Clause change when the number of Hindus and Buddhists approaches the number of Jews and Moslems?

Scalia’s logical point, however, remains a sound one. If religious accommodation is to be permissible, then it must be possible to favor religion at some level of abstraction. How, then, can we define the “religion” that the state is permitted to promote? I’ll try to answer that in my next post.