My First Publication
Not quite true, but close enough. I’m proud to announce that my article, “When Separation Doesn’t Work: The Religion Clauses as Anti Subordination Principles,” will be published in the upcoming Spring 2007 edition of the Dartmouth Law Journal. Here’s the abstract:
Since the Warren Court era, strict separation between church and state has been the hallmark of liberal religion clause jurisprudence. Separation between church and state has been understood to protect minority religions from majoritarian oppression, preventing dominant religious faiths from using the state apparatus to instill an official orthodoxy or creed. Minority faiths, cognizant of these risks, have thus dutifully supported strict separationism as their preferred legal principle.Yet strict separation may not be to the optimal benefit for religious minorities. Using the experience of Jews in America, I take a critical view of the separation of church and state, showing how both in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism). At the same time, separationism is indifferent or even hostile to the particularistic needs of less prominent sects. I then use these observations to construct a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. This principle, inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate an establishment and free exercise perspective that sees as its goal the equalization of status between majority and minority faiths in America.
You can download a draft copy here at SSRN.
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Mazel Tov, and you’re an undergraduate!
So the state should actively favor less prominent religions?
Congratulations David.
A very interesting topic. I haven’t got the time to read all of it right now, but I have downloaded it as to be able to read it later this week. Question: perhaps it’s a good idea if you re-address this issue, say, a week from now? If people have questions they can ask them then? Again, 30 pages and the topic itself is a bit much for one day if one does also have other things to do (I still have to write one entire essay for tomorrow plus half of another).
I skimmed it and found it interesting. My first reaction is that I agree to some extent but I feel that the argument you’re making can apply to majority religions as well as minority ones, particularly as secularism starts to overtake religion. I’m curious, David: if the current trend continues and Christianity itself becomes a minority when compared to secularism, would you also want the same consideration given to free exercise claims of mainstream Christians?
Congratulations David! I have a request that’s much more spoiled than Michael’s, actually LOL. 30 pages is way more than most people will be able/willing to read. I have no essays to write, but I have plenty of work-related articles to read myself. Do you think you could make a very abbreviated version of your paper here on TMV? It sounds like a very interesting topic. Questions instantly come to mind. For instance, if separation were changed so as to allow for better accommodation to the beliefs of different faiths, wouldn’t that risk discriminating against those who have no religious faith? For example: you could make special Kosher menus and Muslim menus obligatory in schools with a certain number of students of those religions, but vegetarian students wouldn’t need to be accommodated, since their menu choice isn’t based on a religious belief.
I shall try to read your piece this week David, and in the meantime, congratulations you Dartmouth Law Review author you. Soon you will be an old-timer there.
With kindest regards,
dr e
Lynx,
I can’t answer for David and won’t pretend to do so, but my take on what you are saying is that the founders deliberated included two equally weighted clauses in the first amendment in order to guarantee freedom from religious persecution as well as guarantee from state mandated religion. They didn’t, however, include any clauses protecting the rights of minorities with various dietary considerations.
I’m being deliberately glib and hope that doesn’t offend. The point is, think about this: one of the most egregious ways that the state could violate individual freedom would be to interfere with an individuals’ beliefs about his/her immortal soul. Increasingly in our modern world, that seems quaint or anachronistic, but the truth is that for many of us, the worst violation that the govt could make would be to interfere with our ability to practice our religion. You, and many others, may feel that there is only this life (and nothing inscribed in law should prevent you from making that choice), but the state has to remain completely neutral on that subject and its obligation is to remove barriers to religious practice (otherwise it is not remaining neutral on the question of whether or not its citizens should choose to concentrate on the material world or the spiritual one). The state doesn’t have a similar obligation to remove barriers for people who choose to practice vegetarianism (or at least our Constitution doesn’t say so).
The Constitution has nothing to do with “minority” religions or “majority” religions. (redundant concept actually).
The Constitution says….ANY RELIGION.
So if there is some perceived unfairness for the UNPOPULARITY of one religion or others…..its irrelevant to the Constitution.
David, your paper is well done – leaps and bounds beyond anything I wrote as an undergrad. I disagree with virtually everything in it but it is a good piece of intellectual work.
CStanley, I can’t quite agree with your phrasing when you say that the state’s “obligation is to remove barriers to religious practice”.
The government’s obligation is not to enact barriers rather than to actively seek to remove them. That certain incidental biases may be part of the system may be unfortunate but is at best a secondary concern.
blackshards,
You’re right, my statement was poorly worded. I was thinking about legal barriers but of course you are right in that those just shouldn’t be enacted in the first place.
I’m going to take y’alls suggestions and put up an abbrievated form of the argument, but just to quickly answer C Stanley’s question about Christians-as-minority: I say in the paper that anti-subordination is equally opposed to the denegration of majority faiths and that’s true. While I feel that we aren’t even close to a situation where Christianity isn’t the dominant religious paradigm, certainly in a situation where the legislature is for some reason not adequately considering Christian interests, or actively trying to subordinate Christianity, then my formulation would be applicable.
Thanks for all y’all’s kind words, and I’ll have a full post up later today.
How can this happen when most of the “seculars” are Christians?
Secular Christians might as well drop the moniker, Holly; the Constitutional right to free expression is for those who practice their faith. Christianity as a label based on cultural/geneological ties isn’t something that has any special consideration under the law.
David, you should also consider contacting some other lawbloggers.
“… in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism). At the same time, separationism is indifferent or even hostile to the particularistic needs of less prominent sects.”
“… a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. … inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate .. the equalization of status between majority and minority faiths in America.”
Combatting the demon “hierarchy-patriarchy” with liberal politics as law again, eh?
> So the state should actively favor less prominent religions?
That comes later (reverse discrimination, excuse me, affirmative action).
So far as we know, reparations aren’t included as well.
Black Shards–since your post doesn’t seem to allow comments:
I don’t really think this is a serious objection. The easiest response would be to refer back to weighing claims of religious liberty against the structures necessary to sustain a liberal, democratic society. Insofar as Islamic norms (or those of any religion) cannot be reconciled with these principles, my theory still would allow democratic values to trump. However, since not every (or even most–but we don’t have to resolve quantitative issues here) aspect of Islam does so clash, in the cases where it doesn’t they should be granted the maximum possible amount of reigious freedom, same as all other faiths. A regulation which said, say, “no headgear in school” should come with an exemption for a Jewish Kippah–and a Muslim hijab as well. That doesn’t clash with any foundation of liberal society, and is an integral part of many people’s faiths. I don’t shy away from that conclusion, because I think equal treatment among diverse citizens is a really basic principle of liberal society.
What’s ironic about your critique is that it really pushes–if not forces–me (a Jew) into opposition to Christianity as you conceptualize it. Your argument was rather explicitly “we can’t give Jews true religious liberties because it would mean giving Muslims the same.” From a Jewish perspective, if the choice is religious liberty in a system that grants it to Muslims as well, or one that does not guarantee such liberty due to fear of Islam, what side do you think I’ll come down on?
Moreover, the premise of your justification for discriminatory treatment–that America is a “Christian” nation and the religion clauses were founded to do the same–is barely a step away from the theocracy you facially condemn. As I wrote in a prior post, Christian Supremacy and Democratic Pluralism”, in addition to standing on shaky historiy, the notion of a “Christian” nation is inherently in conflict with democratic norms, because it substitutes the inherent undecidability of democracy with a concrete desired end-result. Even if I were to assume that a truly “Christian” American polity would continue to be the best place on earth for Jews (historically unlikely), I shouldn’t have to settle–Jews should be able to be full and equal members of American society on their own terms, not be content with scraps and crumbs for how ever long Christian overlords decide to tolerate them. Hence, even stepping out from my article’s framework or a Jewish framework, I’d oppose your conceptualization of America from basic small-l liberal and small-d democratic standpoints as well. You pretty much admit that I ought to be a second-class citizen in your desired polity–I’m not sure why you expect me to support this vision of society.
David, are you in the upper valley area? I just happen to be writing this from Norwich,VT right now across the river from Dartmouth.
No, I’m from Bethesda MD and go to college in Minnesota.
The more I’ve had a chance to think about your proposal, David, the more it seems analogous to what in medicine is sometimes called ‘polypharmacy therapy’. That’s when you prescribe one medication to treat an illness or condition, then get undesirable/intolerable side effects, so you prescribe another med to treat the side effects. Sometimes you truly do have to do that (or at least, under the confines of the available treatments you have to do that, because it might not be possible to ignore the primary illness or condition and there may be no alternative treatment available), and frankly there are way too many physicians who feel that doing this is no big deal and it satisfies their patients. But really, a good physician will step back to be darn sure that there aren’t those alternatives before prescribing a drug to treat a drug induced condition.
In other words, if laws are constraining the right to free expression of religion, shouldn’t we first look to remedy by examining whether or not the law that provoked the complaint is constitutionally valid and whether or not there’s really sufficient interest for the state to infringe on freedoms of the population as a whole (not just in the way that the law is specifically infringing on freedom of religious expression)?
To use your wine/grape juice example (which I realize is just a hypothetical), my suggestion would be to challenge the law of prohibition itself. What was the state’s interest there that trumped freedom to sell and consume these beverages? If it’s not valid, then overturn the law.
I guess one problem with this approach though, is that we’ve gotten to the point where we take such restrictions of our freedoms for granted. We assume that if the majority wants to cede these rights, then it must be OK (well, on most issues anyway; that’s curiously not the case when it comes to abortion even if certain localities want to restrict or prohibit it.)
I agree that from the perspective of a religious minority it would be better to not have the law in the first place than get an exemption passed/mandated, but as you said sometimes there really isn’t anyway to get such things through the legislature.
Another interesting example which I didn’t end up writing about and wouldn’t fit into a libertarian solution, though, is Kosher Laws. New York had laws regulating the sale of foods as “kosher” (to prevent fraud) for nearly a century. They were struck down as establishment clause violations only quite recently. There are bona fide problems with the state declaring what is “kosher” (har har) in a religious sense, but even still Jews understandably might like the state to intervene and protect them so that they know their products really are kosher, and they aren’t being scammed. So that would be a case where strict separation also hurts Jews and a more flexible arrangement might serve them better off (but probably couldn’t be dealt with just by deregulation–almost everyone agrees that fraud is something the state should be involved in).