My First Publication (Part II)
This is an abbreviated version of my aforementioned article. It runs a bit long at 30 pages (if you’re interesting in reading it, but not all of it, Sections II and IV are the heart of the argument.), so I’m putting down a greatly truncated version here (an implication of which is that the argument is better and more complete in long-form). If this piques your interest, please download a free copy of the article to peruse at your own leisure.
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Theoretical Problems with Strict Separationism
In my paper I outline several problems with strict separationism. However, by and large the most prominent is how strict separationism encourages legislatures to pass so-called “generally applicable� laws. These laws are distinguished by the fact that they do not single out or otherwise “notice� religion in any way whatsoever. They apply equally to persons of all (or no) religious faith. It is obvious that a “general� law can have drastically different implications for different faiths. For example, a law categorically barring the consumption of wine would be devastating for Catholics but relatively inconsequential for Buddhists (I’ll use this as an example because I trust the Catholic practice at issue is familiar; I’m not expressing an opinion as to whether Catholics are disadvantaged faith). However, from a religious liberty perspective the problem is the burdens these generally applicable laws distribute will inevitably fall overwhelmingly on minority religions. This is not necessarily a result of overt hostility to minority faiths. Laws will rarely stand in opposition to Christian religious practice, because most legislators are Christians and will be aware of the potential conflict (and won’t want to harm their own faith). Lawmakers are simply more likely to notice when majority practice might be implicated in a law (or be responsive to constituent reports of religious burden or hardship) than if a politically powerless minority sect faces similar problems. Even if made aware of this religious hardship, it may be difficult for a legislator to conceptualize the burden a law places on an uncommon or unfamiliar religious practice, and fairly weigh that against the interests the proposed law is meant to achieve.
Despite being saddled with an intrinsic bias, however, the rhetoric of a “neutral� or “generally applicable� law implies that deviations are a demand for special rights or privileges and thus would constitute religious favoritism. Insofar as minority faiths do inevitably deviate from a norm based on a Christian template, their requests for accommodation would be a facial violation of strict separation and will be summarily rejected. An exemption for Catholics to our “no drinking wine� law could not survive such review, for example. Hence, strict separation will only treat disfavored groups equally insofar as they are similar to or consistent with the dominant paradigm. But if we are to conceive of the religion clauses as protecting religious distinctiveness (that part of having the religious freedom to be Jewish means not having to make your practices Catholic), this schema is a wholly inadequate defense of religious liberty.
The Anti-Subordination Alternative
There is an alternative to the separationist formulation of the First Amendment that is consistent with our desire to protect minority religious traditions. Instead of mandating strict separation in all cases, including those in which that doctrine is interpreted to require state suppression of minority religions under the guise of “neutrality,� the First Amendment “should be read to protect minority religious beliefs and practices from being burdened by government and…equalize the status of minority religions before the government with that of majority faiths.� This is freedom of religion as an anti-subordination principle—concerning itself primarily with the status of religious minorities and insuring that they are placed on equal footing with majority faiths.
Anti-subordination is not a constitutional “test� as much as an outlook or a framing point that directs what ends the legal system desires the religion clauses to achieve. Ruth Colker articulates the view of anti-subordination as believing that “it is inappropriate for certain groups in society to have subordinated status because of their lack of power in society as a whole.� This is contrasted with the “anti-differentiation perspective,� which holds that “it is inappropriate to treat individuals differently on the basis of a particular normative view [about their group membership].� In other words, if we are committed to treating two groups equally under anti-differentiation, we must treat them precisely the same, while if we are committed to equality as anti-subordination, we must treat them in a manner so as to equalize their status in society, which may require disparate treatment. Anti-differentiation manifests itself in separationism insofar as the principle facially condemns disparate treatment between religions, as well as between religion and irreligion. It is thus officially agnostic to the manner which equal treatment might yield unequal effects or results. Anti-subordination sees the harm not necessarily in the particular treatment government metes out to religious or secular actors, but in the resulting effects such treatment has on those groups’ equal status in society. To return to the wine case, anti-differentiation would notice only that Catholics and Buddhists are being treated the same, and that an exemption would treat them differently (and thus unequally, and thus illegitimately). An anti-subordination stance would notice that the wine law impacts Catholics and Buddhists differently, and that it has the effect of subordinating the Catholic faith by proscribing a crucial element of its faith. Moreover, if an exemption were granted, Buddhists would not see themselves as being disadvantaged or subordinated to Catholicism (assuming they too received exemptions in analogous cases where they are on the bottom). Using an anti-differentiation principle would do nothing to “protect� Buddhists and would do serious damage to Catholicism. So anti-subordination would advocate granting the exemption, differential treatment notwithstanding.
Articulating the First Amendment from this framework would, in my opinion, yield significantly different jurisprudence. By recognizing that difference is a relative term, it would reject the “original entitlement� the dominant party claims by virtue of its dominance, by which the subordinated party’s difference/deviation is made into a justification for unequal treatment. Generally speaking, a view from the perspective of the minority group will not condition equality on sameness with the majority, but rather will define equality as equal entitlement to pursue their own conception of the good. At the very least, an affirmative effort to include subordinated perspectives into legal discourse would enhance their moral and democratic legitimacy, for as Iris Marion Young argues, “Normative judgment is best understood as the product of dialogue under conditions of equality and mutual respect. Ideally, the outcome of such dialogue and judgment is just and legitimate only if all the affected perspectives have a voice.� Insofar as some voices are not represented in the status quo, legal actors must proactively work to insure that the voice of the minority—be it Jewish, Muslim, Atheist, or other—is included and fairly considered in the proceedings.
Objections
1) Isn’t this biased in favor of minorities?
Well, yes and no. What anti-subordination recognizes is that different groups, in order to be truly equal in society, may need different treatment. Laws are written with the majority in mind and their interests should be protected via democratic processes. The same can’t necessarily be said for minority groups. This is why we have judicial review in the first place. So in that sense, it provides a different type of review for minorities, because they’re in a different situation in our society and polity than majorities. Ironically enough, though, in many of these cases the legislatures were quite protective of minority rights, carving out exemptions for faiths which requested it, only to see their laws struck down as religious favoritism. In that case, anti-subordination acts as a constraint on courts to stop them from interfering with the democratic process as it tries to accommodate religious difference.
What I will say is that if we understand the religion clauses as expressing a constitutional aspiration that all faiths (or all those compatible with basic liberal premises) should be free to exercise their religion in their own autonomous and distinctive manner, then we will almost definitely have to pay special attention to minorities whose faiths and practices are unfamiliar or strange. You can’t see through a wall (of separation), and this blindness is a major obstacle to writing legislation and policies compatible with religious pluralism.
2) What about the human sacrifice religion?
To go into a bit more technical constitutional nomenclature, anti-subordination would in large part restore the Sherbert test (largely abandoned by the Supreme Court in the 1990s) for Free Exercise cases, which demands that laws which impede on religious practice be supported by a “compelling state interest.� This is the same standard that the Court uses to analyze other rights claims—free speech, freedom of assembly, equal protection, etc.. Though it is a stringent standard, certainly it is not impossible to meet, and preventing killings (along with a wide array of other rules necessary to keep intact a liberal, civilized society) would easily survive it. The point is to enshrine religious pluralism (including the right to distinction from prevailing norms) as a constitutional value. This clearly does not mean this value cannot be “trumped�—but we should be explicit when we do so, and what I’m rejecting is that an “anti-differentiation� or “strict separation� principle is strong enough to trump by itself.
3) What counts as a “minority� faith anyway?
This, actually, is the toughest question. In general, I mean “non-Christian� faiths, because America is a Christian dominated polity. Our very conception of religion is premised around a Christian template (for example, there have been reams of paper written on how the constitutional privileging of belief over action is a Christian model that was designed to stand in contrast to Judaism, which holds the reverse), every legislator is aware (or soon will become aware) of basic Christian religious practices, and there is close to zero chance of an American polity passing a law severely burdening mainstream Christian religious practice. Nonetheless, I recognize that certain Christian sects may be likely to face severe burdens that rise to the level of subordination (Jehovah’s Witnesses are the obvious example).
The tougher case would be a village or town that is overwhelmingly of a non-mainstream religion. I do not oppose the existence of minority-dominated localities—in addition to the fact that many religious traditions require this sort of seclusion, such an opposition would be fundamentally biased: nearly every town is Christian-dominated—there is no reason why disadvantaged groups should be “locked in� to minority status at every level of governance if they desire some level of local autonomy or a community where their culture is the norm (and not an “exemption� or “accommodation�). That notwithstanding, in such situations it is still quite fair to examine whether or not a Christian “minority� is being treated fairly and equally. In short, anti-subordination is aware of the potential for subordination of the nationally dominant faith in a minority-comprised locality. However, it does not view the mere existence of such locales as constituting subordination.
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10 Responses to “My First Publication (Part II)”
I haven’t read the whole article, so feel free to simply refer me to it if you answer my questions there. I see this being conflictive for various reasons.
For starters I’d like to ask if this manner of doing things isn’t un-constitutional, outright. Is there a credible argument to be made that the amendment of freedom of religion could include this sort of thing?
This strikes me as a religious affirmative action. It doesn’t surprise me that you would support it, since you support the more traditional forms of affirmative action. I can see the good intentions, but I wonder about how practical it could really be.
The question of what a minority religion is is not a trivial one. It’s not merely a matter of including minority Christian faiths, there are other issues as well. For starters location. Being a mormon might make you a minority in Alabama, but it sure doesn’t in Utah. Any action would have to be state level, at best, or just local (after all, urban and rural New York are NOT the same). Then there’s a matter of which faiths we allow into the religion club. There are a gazillion faiths in the world, some of them with fairly exotic requirements. You have to decide what number of faithful constitutes a minority requiring special protection. What about Scientology? It has about as much proof of it’s veracity as other faiths, can you reject it? What about convenient “converts” to a faith in order to garner some privilege. You’d have to sort out the real religious from the fake. How do you do that, who decides?
Then there is the endlessly thorny issue of the “greater good” of society. Let’s not take a weird cult here, let’s just be direct and take Islam. Fundamentalist Islam teaches that women are meant to be wives, and many don’t want their girls to be in school beyond a certain age. But we think that’s absurd, so we prohibit it. Genital mutilation is utterly out of bounds of course….unless you’re a Jewish boy, apparently. Please argue to the judge what harm is caused in society by multiple wives, condoned in the Koran. Where you set the limit depends a great deal on your worldview and THAT often depends on your religion (or lack thereof) so that the exceptions for “the greater good” are doomed to bias from the start.
I see what the intention is, but my impression is that it would open a HUGE can of worms that could cause more harm than good, possibly.
My primary reservation is the one Lynx mentions (and David himself mentions and tackles) which is figuring out what a minority religion is. As is well known, one’s religion is often a matter of perspective in the same way that ethnicity is. You can define and redefine ethnicity as you zoom in and out of cultures. Moreover, you will find a lot more disagreement about what is and is not Christian. Actually, we have seen a similar debate on this blog a lot concerning whether or not there really is anything to be termed Judeo-Christian. I am sure one could do a lot of work on this and perhaps come up with some useful definitions. However, it might be more efficient to focus on practical problems that are applied across the board. When something happens to a group that shouldn’t, you deal with it. Minority religions will encounter these problems far more often than majority ones (if there is such a thing as a majority religion; let’s call this the denomination problem), but government doesn’t act because the aggrieved party is a minority religion, but because a valid religion is encountering a problem which needs remedy.
I’m arguing that we should understand the first amendment within this anti-subordination paradigm. Judges who read the 1st amendment differently (using an anti-differentiation principle, for example), will differ as to whether my proposed solutions are constitutional are not. But I’m asserting that I’m right, and they’re wrong, so that argument can’t be resolved just by an appeal to constitutionality–that’s the focus of discussion.
The question of what is a religion/who is religious is admittedly difficult, but is one courts have to decide anyway no matter what religion clause jurisprudence we use. Right now, the prevailing standard is from US v. Ballard, and it says that the courts will accept an assertion of a religious belief if it is, in fact, “sincerely held [to be a religious belief].” You may or may not like that standard (I think its worked surprisingly well for the past 60 years), but again, its not a unique problem for my advocacy alone–you have to resolve that question no matter what religion clause jurisprudence you forward.
As I said earlier, laws which impinge on religious exercise would be adjudicated by the same “compelling state interest” standard we use for all other rights-claims. So for all the cases you outlined, the question is do you think there is a compelling state interest for forbidding them (and if you can’t think of one, why are you so worried about the act being allowed?). “Greater good of society” is indeed far too vague, but compelling state interest has a well-developed doctrinal history that should be able to be applied with some degree of consistency. Incidentally, the “take the youth out of schools early” case has indeed been heard, and decided upon in favor of allowing the practice. You may have heard of the case: it’s Wisconsin v. Yoder, and the religious body was not Islamic but Amish. It’s considered a hallmark of religion clause jurisprudence.
And pac, the reason I think that minority religions should get special attention is because they’re less likely to have their interests heard in the legislature than majorities. Put simply, if a Christian-dominated legislature passes a law that impinges on Christian religious practices, they almost definitely have a really really good reason to be legislating against themselves (to paraphrase the great constitutional theorist John Hart Ely, its very weird to talk about the majority discriminating against itself). The same guarantee doesn’t exist for minority faiths, hence the amount of deference to the legislature shown by the courts should be reduced accordingly.
David, this is a link to a post I wrote about the complete article, FWIW.
In short(er) form, separation of church and state is not definitively defined in the Constitution. Neither is the ideal of completely equal treatment.
To complaints about the current state of precedent-derived law, I say: “So what?� The Constitution and the form of legal precendent was established by Christians, for Christians, and its protections designed for various sects thereof. That it allows for Jews, Muslims, Mormons, Hindus, et al, to practice their religions freely is proof of its inherent wisdom but not of its equanimity toward all creeds and their practices.
This is perhaps best exemplified by U.S. laws precluding polygamous marriages. Although many religions regard this as a fundamental right of its male practicioners, it is legally unacceptable in the U.S.
Why? Because Christianity disallows it.
A second point is that the legal system does not, in fact, favor Christians. Did it favor Judge Roy Moore when the boom fell on him and his monument to the 10 Commandments? Did it favor the city of Houston in regard to its display of the Bible at the local courthouse?
No. In both cases the beliefs of the majority of Americas were trampled at the altar of separation of church and state, AKA religious correctness.
David- [For example, a law categorically barring the consumption of wine would be devastating for Catholics but relatively inconsequential for Buddhists]….
This is an incorrect analogy. Wine is NOT Required in the Catholic faith. Grape juice is commonly used and is quite acceptable.
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Okay, so bad example WA, but you understand what I mean, no (substitute “no grape beverages” and we’re back to where we were)?
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Black Shards–here’s the response I wrote to your post (since it doesn’t seem to accept 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 I agree with CS in the other thread:
I personally think we need to have a lot fewer restrictions on everyone by having a greatly increased burden of proof for state’s interest.
But regardless I’m confused about your whole basic premise. The Supreme Court has ruled that religions that use marijuana in their practices can use it legally. Ones that require animal sacrifices can do so regardless of health/animal cruelty regulations. Prisons and the military have been ordered to provide a lot of support for minority religions even though those are two places were normal rights are abrogated. I can’t think of any instance where what you are proposing would be drastically different than what’s already in practice. Do you have one?
Actually, you’re wrong about the drug use example–the Supreme Court ruled in 1990 (Oregon v. Smith) that such exemptions were not in fact required, at which point legislative exemptions were created (in which case, my advocacy is that the courts should stay out of the way of the legislature, which they’ve mostly done). The animal sacrifice case, too, you’re misstating. That one (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah) struck down a law barring animal sacrifice because it found the law was motivated solely by animus to the Santaria religion–it was not a “neutral” one at all. The record of religious liberty in prisons is, at best, mixed, and in the military most of the religious accommodation has come legislatively, not judicially (see Goldman v. Weinburger).
Cases where I think things should be done differently would include exemptions to Sunday Closing laws, some way of regulating the sale of “Kosher” foods so as to prevent fraud, more generous review of legislative laws passed to remedy religious marginalization (cf. Kiryas Joel v. Grumet) and a guarantee of judicial (not just legislative) protection for necessary religious accommodations.
OK I read up on Oregon v. Smith and I think I had a misimpression because the final outcome is so odd that it defies common sense (the Oregon Supreme Court ended up ruling that it was illegal to possess peyote regardless of religious beliefs but that it was unconstitutional to not give unemployment benefits if the people are caught — because of their religion?)
I agree that the Kiryas Joel case had a negative outcome but I can’t tell whether it’s a freedom of religion issue or just bad logic. If a place has a drastically different culture I don’t see why it matters if they have their own school district (but I don’t think it should be limited to religion — to me the decision would be like compelling New Orleans area schools to go to class near Mardi Gras). It’d be a freedom of religion issue if the students were punished for not going to class because of their religious observances.
I’m wary of your proposed solution. If the government doesn’t have a compelling interest to force all people in doing something then why should it have it over some? If Native Americans can use peyote for mystical purposes then I should be able to use it for recreational.
I’d personally favor a solution more along the lines of Lawrence v. Texas. There they found that “privacy” was an overriding concern that made the statue unconstitutional. I don’t think that issuing exceptions to homosexuals would have been a good solution but that’s basically what you’re arguing in the religious realm. I’d much rather see “religious freedom” be a strong argument in securing individual freedoms for all citizens.