ESTABLISHMENT'S POLITICAL PRIORITY TO FREE EXERCISE.

• Author: DeGirolami, Marc O.

INTRODUCTION

Americans arc beset by disagreement about the First Amendment. Progressive scholars are attacking the liberal view, famously associated with Ronald Dworkin, that First Amendment rights are "trumps" such that it is wrong to constrict them to secure "overall benefit." (1) Jamal Greene, for example, has argued that rather than "tak[ing] rights seriously," we should be taking them "reasonably," limiting them by the requirements of justice and what binds the political community. (2) Anything more reflects an unjust inflation of individual interest over our common political commitments. (3) Many others have criticized the hypertrophy of free speech and argued for constricting its scope. (4) Rigbts, the new constrictors say, (5) now have unwarranted political and legal priority to our shared values.

These disagreements afflict the Religion Clauses as well. The hotbed of law-and-religion conflict has moved from establishment to free exercise. (6) All of the latest culture-war controversies are about free exercise, (7) not establishment, including the lights about occupancy restrictions on religious institutions because of the COVID-19 epidemic. (8) Decisions at one time raising Establishment Clause issues are now fought on free exercise terrain. (9) The few establishment cases have generated far less controversy. (10) Rights constrictors argue that religious exemption has become more important than the values of establishment defining the polity." The swelling of free exercise has wrought, some say, the "quiet demise of the... separation of church and state." (12)

This Article contests these views. The fundamental rules, norms, and settlements constituting the political regime--what this Article calls "the establishment"--have now, and have always had, political priority to rights of exemption from it (13) The establishment includes religion as traditionally defined and understood, but it is broader than that. It is the set of foundational laws and values of the political community, including its laws about religion: for example, what counts as "religion," what types of religion are tolerated, and which communal considerations are important enough to override religious interests. Establishment Clause doctrine is only one component of the establishment." "Civil religion," the set of transcendent, church-state propositions that support the political regime's legitimacy and authority, is another. (15) Finally, by "political priority," the Article means three things: (1) conceptual priority, meaning dependence on another political settlement; (2) historical priority, meaning temporal precedence; and (3) priority of importance, meaning greater political significance.

The establishment, on this understanding, has political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment's civil religion has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine. Free exercise exemption's contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court in the twentieth century and consolidated by it in the twentyfirst. The Court's Establishment Clause doctrine never has been solely about prohibiting formally recognized, state-operated churches. Its reach has been much broader, controlling, influencing, and altering many features of the American establishment. And it is only because the Court, in its Establishment Clause doctrine, first dismantled the existing civil religion and shaped the direction of a different civil religion--even if incomplete, partially unexpressed, and still evolving--that it could turn to the secondary task of determining the function and scope of free exercise exemption.

Yet it is exactly liberal regimes like the United States, which ostensibly privilege individual rights like religious exemption, that might challenge this Article's thesis. Indeed, the liberal rhetoric of rights such as religious free exercise in America might even suggest that rights of exemption are antecedent politically to the establishment. This is precisely the complaint of today's rights constrictors, who argue that the establishment, in the sense of our common American commitments, has been subordinated to a conception of individual rights run amok.

This Article takes up and rejects that challenge. Drawing from classical political regime theory, the Article argues that the establishment's claim of conceptual political priority to rights of exemption follows from the structural relationship of exemption claims to the fundamental settlements of the American political regime. Classical political regime theory illuminates and corrects the distortions of liberal accounts of the relationship of rights and obligations. It clarifies, as liberal theory obscures, the political priority of the establishment to exemptions from it. Rights constrictors are therefore wrong conceptually about the priority of rights of exemption to common political commitments, and classical political regime theory explains why.

They are also wrong sociologically. The last century of American law and religion jurisprudence shows the political predominance of the establishment's civil religion to free exercise exemption from it. But it shows something else, too. Free exercise exemption was one of the Supreme Court's principal tools in dismantling the old, soft Christian civil religion and forging a very different replacement. That is, establishment is politically prior to free exercise exemption in the sense that the Supreme Court's project to change the American civil religion set the political agenda for its doctrines of free exercise exemption.

Part I explains how classical regime theory illustrates, just as liberal theory disguises, that establishment has a powerful conceptual claim of political priority to free exercise as exemption in America. That claim to priority is not confined to modern American constitutional law. Rights constrictors are therefore wrong in principle--wrong conceptually. The liberal rhetoric of the priority of rights of exemption to the commitments of the political regime notwithstanding, free exercise exemption cannolbe politically prior to the establishment.

Part II contends that sociologically and historically, the case for the establishment's political priority to free exercise is even more straightforward and compelling when the focus is limited to the last century of American legal doctrine. The most important Religion Clause decisions systematically dismantled America's longstanding, soft Christian civil religion. Free exercise often has been described as an afterthought, something reserved for the exotic, the unthreatening, and the politically marginal. Yet if the doctrine is considered relationally--in terms of its overall response to, and effect on, American legal culture rather than in Clause-bound compartments--free exercise exemption during this period is more precisely conceived as one of the Supreme Court's establishment-dismantling instruments.

Rights constrictors contend that the situation today has changed. Free exercise exemption has acquired, in their view, political priority to establishment. And they are not alone. Indeed, progressive-leaning rights constrictors and conservative-leaning critics of the administrative state align in seeing exemption as the principal means to resist the regulatory state's growing incursions on religious freedom. Where rights constrictors condemn this development, critics of the regulatory state celebrate it. But both believe that religious exemption is a highly effective tool of resistance to the establishment.

In Part III, this Article disagrees with both groups. Though today's most divisive law and religion controversies often take surfacelevel legal shape as questions about free exercise exemption, their deeper source is a long-gestating transformation in the American establishment's civil religion. Both groups view religion through the lens of liberal theories of individual rights--and religious freedom through the liberal lens of "rights as trumps"--and both make the error of divorcing civil religion from religion. Classical political regime theory again better explains the political relationship between the emerging, new establishment and religious exemption law. Today's free exercise cases are the latest skirmishes in yesterday's establishment wars. They reflect disagreements over how best to characterize the work of the twentieth-century civil religion dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion. And what they show is that in twenty-firstcentury America, just as ever, establishment still takes political priority to free exercise. The Article concludes by reflecting briefly on the nature of the new civil religion, and some of the legal and cultural implications that might follow from establishment's political priority.

1. THE ESTABLISHMENT AND EXEMPTION FROM IT

   An account of the political relationship between establishment and free exercise, as well as of which has political priority, requires some explanation of (1) what counts as the political, (2) how some features of the political may take priority over others, and finally (3) how the Supreme Court's interpretation of the Establishment and Free Exercise Clauses in relation to each other may reflect these ordinal political dynamics. This Part takes up the first two issues, while the following Parts address the third.

   Political institutions are influenced by, and in turn help to form, other anthropological, cultural, and social institutions, assumptions, and ends--the nature of the human person, the existence and constituents of human dignity, the place and role of the individual...