Disestablishing environmentalism.

• Author: Morriss, Andrew P.

1. INTRODUCTION II. RELIGION AND THE ENVIRONMENT A. Defining Establishment and Religion B. Is Environmentalism a Religion? 1. What is Environmentalism? 2. Environmentalism's Religious Language 3. Environmentalist Writing on Religion 4. Critiques of Environmentalism as a Religion 5. Thinking about Environmentalism as a Religion C. The Establishment of Environmentalism 1. Commanding Private Action 2. Government Symbolic Action 3. Direct Government Action III. THE LESSONS OF DISESTABLISHMENT A. Disestablishment as a Means of Promoting Religion 1. The Impact of Disestablishment on Religion 2. The Impact of Disestablishment on Environmentalism a. Diversity Among Environmental Groups b. Entanglement with the State's Impact on Environmental Quality B. The Problem of Environmental Orthodoxy IV. CONCLUSION A. What Disestablishment Does Not Mean B. Imagining a Disestablished Environmentalism I. INTRODUCTION

   Debate over environmental policy is increasingly conducted in language with strong religious overtones. Both proponents and opponents of various environmental policies appeal to religious doctrine to support their positions: (1) Those who question human-caused global warming are labeled "heretics," (2) ignoring environmental limits is "ecologically wicked" and sinful," (3) while appeals for environmental "stewardship" echo Biblical texts. (4) Religious groups play an important role in defining environmental policy issues. For example, the United Church of Christ helped introduce the term "environmental racism" into debates over environmental policy. (5) Both supporters and critics of specific environmental policy views have labeled particular sets of beliefs about the environment a "religion." (6) And empirical studies have found that membership in churches and environmental groups are sometimes substitutes. (7)

   In this Article we engage in a thought experiment, arguing that there are valuable lessons to be learned from treating Environmentalism as if it were a religion, and therefore subject to the First Amendment's prohibition on laws "respecting an establishment of religion." (8) (We will use a capitalized "Environmentalism" to refer to the potentially religious set of beliefs about the environment and an uncapitalized "environmentalism" to refer to secular beliefs about the environment. We discuss the basis for the distinction below in Part II.B.) In particular, the consideration of the economics of the Establishment Clause--perhaps better termed the economics of disestablishment--offers important insights into how to structure environmental policies in a way that can improve environmental quality.

   The relative successes of established and disestablished religions make a compelling case that establishment of religion leads to less, rather than more, religious belief and behavior in the long run and that a free market in religion ultimately produces more religious belief and observance than does an established church, albeit of a potentially different character than that produced by an established faith. Our conclusion is that applying these lessons to environmental policy can help increase environmental quality, while ignoring them risks creating the environmental equivalent of the empty churches of established denominations in Europe. (9) Disestablishment of religion yielded a diverse and active collection of religious faiths that made the United States rank consistently among the most religious nations in the world; (10) we contend that disestablishment of Environmentalism can also produce a more diverse, active collection of environmental policy ideas with the potential to change individual behavior in ways that will benefit the environment more than continuation of an official environmental catechism can accomplish.

   No doubt the mere suggestion that environmentalism is a religion will raise some hackles. As religious people ourselves, albeit in conventional Christian denominations, we are sensitive to the potential for offense that the metaphor offers to both sincere environmentalists and sincere religious believers. We do not intend offense; we make this argument because we want the environment to reap the benefits disestablishment brought to religion in America. We therefore ask the indulgence of both groups in pursuing this thought experiment--one that we think will yield some benefits for the ideals both hold dear.

   Although the United States Supreme Court's Religion Clauses jurisprudence is charitably described as confused, (11) we begin in Part II with the constitutional jurisprudence concerning the definition of religion. Even in its current muddled state, that jurisprudence sheds light on the types of beliefs to which the lessons of disestablishment apply, particularly if combined with some of the insights from the recent social science literature on religion. While we will leave the debate over whether Environmentalism is formally a religion to scholars who specialize in the constitutional doctrine, we conclude that Environmentalism shares sufficient characteristics with religion to justify our inquiry. In Part III we examine the lessons of religious disestablishment and their application to Environmentalism and conclude that there are valuable lessons from our approach for improving the environment. Part IV concludes by both anticipating criticism through describing what our approach would not mean and by analyzing the utility of this thought experiment.

2. RELIGION AND THE ENVIRONMENT

   From the Biblical injunction to" "be fruitful and multiply" (12) to the earth goddesses who play a role in a large number of polytheistic religions, (13) virtually every religion has something to say about the environment. (14) Of course, that religions regularly touch on environmental matters no more makes environmentalism a religion than the Ten Commandments' proscriptions on theft transform the philosophy of property rights into a religion (unless Justice Breyer (15) says it does, of course). The important question is whether Environmentalism embodies enough characteristics of religion that we will get better environmental outcomes by treating Environmentalism as if it were a religion even if it is not formally a religion, constitutionally or otherwise. Specifically, we argue that the disestablishment of Environmentalism would produce more environmental protection in many respects, just as the disestablishment of religion led to more religious behavior.

   To determine whether some versions of environmentalism are religious enough to make the lessons of disestablishment applicable requires that we examine both the content of the Constitution's use of the word religion and the set of beliefs that might be labeled Environmentalism. We first briefly survey the existing jurisprudence and commentary on the constitutional meaning of religion. We then examine the debate over whether some forms of Environmentalism qualify as a religion within the meaning of the Constitution.

   A. Defining Establishment and Religion

   The courts have wrestled with the definition of religion throughout the history of the Religion Clauses' jurisprudence. From Davis v. Beason (16) in 1890 through the controversial 1987 decision by U.S. District Judge W. Brevard Hand that "secular humanism" constituted a religion, (17) the definition of religion has been crucial to interpreting the Constitution's language on religious liberty. (18) In a wide range of cases involving everything from religious exemptions to the draft, (19) the content of curricular materials, (20) prayer in public schools, (21) and the display of the Ten Commandments, (22) the courts have wrestled with the problem of creating a coherent definition. Despite this long struggle, or perhaps because of it, there is no definitive answer in either the historical record or the Court's jurisprudence as to exactly what constitutes a religion for constitutional purposes. (23) The range of possible readings of the term religion runs from an extremely narrow one requiring the full apparatus of buildings, priests, official doctrines, and rituals to a broad definition that accepts any individual's self-labeled religious belief as a religion. (24) Neither end of the range is satisfactory as a definition, however.

   There are also doctrinal problems with defining an establishment of religion. As Judge Michael McConnell notes, "[i]t has been so long--about 170 years--since any state in the United States has had an established church that we have almost forgotten what it is." (25) The Supreme Court has not yet articulated a clear definition of this term either. As a result, as Professor Leonard Levy noted in summarizing the Court's Establishment Clause jurisprudence, "a strict separationist and a zealous accomodationist are likely to agree that the Supreme Court would not recognize an establishment of religion if it took life and bit the Justices." (26) Note that Professor Levy's complaint in the quoted passage is not that the Court finds too few or too many establishments of religion (although he has an opinion on that as well) but that there is no consistent analysis capable of predicting when it will and when it will not, leaving both separationists and accommodationists dissatisfied. (27)

   Despite these problems, this jurisprudence is helpful for our purposes. The legal doctrine is useful because, regardless of how theoretically confused it may be or how unsatisfying the doctrine is to law professors craving an overarching theory, religion in America has flourished under the Supreme Court's interpretation of the Establishment Clause. (28) As We describe below, Americans are remarkably religious people compared with most of the rest of the world. We go to churches, temples, synagogues, mosques, and other houses of worship more than most, voluntarily contribute more money and time to religious institutions than almost anyone else, and practice our faiths more regularly than do citizens of...