Balkinization: Corruption of Religion and the Establishment Clause

Corruption of Religion and the Establishment Clause

Andrew Koppelman

Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. In a new paper, “Corruption of Religion and the Establishment Clause,” I explore a different consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it.

This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion. The paper examines the pertinent views of the most prominent early proponents of toleration and disestablishment, including Milton, Roger Williams, Locke, Pufendorf, Elisha Williams, Backus, Jefferson, Paine, Leland, and Madison, as well as the somewhat different articulations of the idea by Adam Smith, Tocqueville, Justice Hugo Black, and Hayek.

If the religion-protective argument for disestablishment is to be useful today, it cannot be adopted in the form in which it was understood in the 17th and 18th centuries, because in that form it is loaded with assumptions rooted in a particular variety of Protestant Christianity. Nonetheless, suitably revised, it provides a powerful reason for government, as a general matter, to keep its hands off religious doctrine. It offers the best explanation for many otherwise mysterious rules of Establishment Clause law.

The paper is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1268406.

Posted 1:58 PM by Andrew Koppelman [link]

Comments:

Most religions think they're inherently (or should we say "constitutionally"?) immune from corruption; were that not the case, their entire raison d'être and legitimacy falls apart. ;-)

Cheers,

# posted by

Arne Langsetmo : 6:31 PM

The obvious corollary, of course, is that the other religions, being false ones, are eminently corruptible -- and in fact corrupt. The implications of such a corollary are fastidiously avoided, of course.

Cheers,

# posted by

Arne Langsetmo : 6:33 PM

Reminds me of a passage from "Only Begotten Daughter" by James Morrow.

When the title character finds her foster father in Hell, she asks him why he is there. He tells her that so long as one person believes you should be in Hell when you die, that is where you go. She asks how you get to heaven, then, and he tells her that no one gets to heaven, someone always wants you, or your race, or your religion to go to Hell.

Well, somebody's got to be right, right?

# posted by

Fraud Guy : 8:59 PM

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# posted by

James Wimberley : 10:11 AM

I quickly read the paper. I agree that anyone who wants to establish the environment in which the ‘no test’ clause became part of your Constitution has first to understand the European religious dimension in general and in particular that of England:-

(i) the medieval concept that all Monarchs in Christendom held office under God and subject to the jurisdiction of the Papacy;

(ii) the concept of the Monarch as God’s anointed – with the coronation ceremony to this day providing for the anointing of the sovereign in the same manner as for a bishop and for robing in the vestments of Byzantium – I well recall the Queen’s coronation and the debate on whether the TV cameras should be allowed to go close at the moment of the anointing – it was not permitted;

(iii) the concept that subjects had to follow the religious confession of the monarch and that dissent threatened the nation state and was treason;

The origins of the English Test Acts debarring non Anglicans from national and municipal office and even from matriculating at university.

The founding of the North American colonies with religious settlements that were different from those of the home country.

Therefore “no test” in the Constitution and in particular its negative formulation suggests, not that the new Republic was to be anti-religion (as was the French Revolution) but it was to be anti-confessional.

It is perhaps interesting to note how the situation has evolved here in the country from which your Founding Fathers case - without the straitjacket of a written constitution – examples:-

(i) While the state religion of England is the Church of England, and Scotland is officially Presbyterian (such that the Monarch officially changes confession whenever she crosses the border), the state happily funds confessional schools on the same basis as state schools. Religion is not a taboo subject within state schools – at primary school children are taught about all the major religions and the elements of the confessional beliefs – and the festivals – as part of their preparation for life in a multi-confessional society;

(ii) The advancement of religion remains one of the charitable objects giving rise to tax relief;

(iii) public prayer on moments of national significance – the commemoration of war dead, or the opening of the legal year, continues - but generally with a multi confessional clerical component;

(iii) Discrimination is prohibited – so that, for example, the anti-gay religions are not allowed to operate adoption agencies which refuse to contemplate placement of a prospective adoptee in a same-sex household – they must either keep their faith out of the decision or close their agency;

Pragmatically, since the Founding Fathers were generally from the British Isles, I would think their intent was, on the evidence, to respect religion, permit its free practice, approve of the holding of religious beliefs but to adopt a position of neutrality towards the confessions and their peculiar beliefs.

Since I regard “originalism” of any flavour as a heterodox method of constitutional interpretation, I do not think that it serves any useful purpose to dignify the judgments of its proponents by analysing them as if the method had any validity whatsoever. It is sufficient to say that Scalia, for example, uses this heterodox method to arrive at a conclusion which happens to coincide with his personal convictions as to what might properly constitute religious truth.

As a Muslim, I believe that anyone who follows and endeavours to comply with Divine revelation as received by him or her is in fact practising Islam which is essentially submission to the will of the Almighty. Thus the Jew or the Christian is my brother in faith, as is the animist who sees the deity in a crocodile, or the Hindu who attributes divine power to many deities. Each is doing what his revelation commands. Logic compels the conclusion that the faiths must be treated by the state as equals inter se

# posted by

Mourad : 11:34 AM

"If the religion-protective argument for disestablishment is to be useful today, it cannot be adopted in the form in which it was understood in the 17th and 18th centuries, because in that form it is loaded with assumptions rooted in a particular variety of Protestant Christianity."

I'm not sure why that would be the case--because no one adopts that particular version of Protestant Christianity anymore? That's not true. Because everyone adopted that particular version of Protestant Christianity in the 17C & 18C? That's not true either. Because fewer people adopt that particular version of Protestant Christianity? I'm not sure that's true, and I'm not sure why the relative numbers mean that an argument "cannot be adopted" today. I don't see what's different between then and now that made the argument good or more useful then but makes it bad or less useful now.

# posted by

Chris : 2:14 PM