GIVING OUR BETTER ANGELS A CHANCE: A DIALOGUE ON RELIGIOUS LIBERTY AND EQUALITY.

• Author: Berg, Thomas C.

This essay is a collaborative effort to engage in a dialogue on church-state issues that are often hotly debated in our society. Each of us has strongly held positions on the disputes we discuss. Our purpose here, however, is not to present our own views as forcefully as we can. Instead, our goal is to move away from the bitter polarization and demonization that characterizes so much of the arguments about law and religion today. We are searching for ways to discuss and resolve difficult church-state issues that may reduce acrimony and divisions within our society, foster bridge building among divergent communities, identify common ground, and provide opportunities for compromise.

Obviously, some readers may reject our goals out of hand. They are so angry at, and fearful of, those holding opposing views that the only resolution of church-state disputes they can accept is the total domination of their adversaries. We understand these feelings. Sometimes we feel them ourselves. Anger and fear are easy emotions to experience today. We believe, however, that these emotions tend to create an increasingly unproductive cycle in which each side focuses exclusively on how to respond ever more forcefully to what they perceive to be the other side's transgressions. This essay is for readers who want to try to move beyond these cycles of recrimination--at least in this one area of the law.

We reject the position that our society is confronted with a zero-sum game of unrelenting culture war requiring the complete repudiation of the losing side's needs and interests. Thus, for example, in the conflict between religious liberty and LGBTQ rights, we do not believe that religious liberty rights must be denied all recognition and essentially treated as a non-right in order to protect the humanity and rights of the LGBTQ community. We also reject the contention that the LGBTQ community must be denied their basic human rights, such as the right to marry, and other important interests in order to protect religious liberty. (1)

We recognize that the resolution of any church-state dispute will be more acceptable to one side than its opponents. We think however, that many disputes may be resolved in a way that takes the interests and needs of both sides into account so that neither side wins nor loses everything. And it is possible to employ reasoning in decisions that reflects respect for both sides in the dispute.

We accept the constraints of the society we live in. Devoutly religious individuals are not going to abandon their faith and their religious obligations. The members of the LGBTQ community are not going to transform themselves into some other identity or accept the denial of their humanity. Religious minorities will not subjugate themselves into oblivion to accommodate majoritarian preferences. Judicial decisions cannot move us forward to bridge the divides that separate our communities without recognizing this reality. The other side is not going away.

In this article, we address four aspects of church-state disputes:

* Foundational principles and values. Here we focus on the core interests, such as religious liberty and equality, that underlie and justify constitutional commitments relating to religion.

* Substantive doctrine. Here we describe and evaluate the doctrines developed through case law implementing core constitutional principles in two key areas: (1) free exercise of religion and (2) Establishment Clause restrictions on government religious exercises and displays.

* The understanding of social reality. Even assuming agreement on principles and doctrine, considerable controversy may arise as to the social reality to which doctrine is applied. The recognition that state coercion of religious exercise is impermissible, for example, leaves open the question of what as a factual matter constitutes coercion.

* The tone and content of reasoning in opinions. The language expressed in judicial opinions may communicate that the court understands and respects the concerns and experiences of litigants even if it rules against them. Alternatively, courts may write opinions that are dismissive and hostile to the interests of losing parties.

We employ a dialogue format for this piece. Other than the introduction and conclusion, which are co-authored, each section of this essay will offer a primary discussion of the issues by one of us, followed by a brief response by the other.

1. FOUNDATIONAL PRINCIPLES AND VALUES

   Alan Brownstein

   The following principles and values provide a foundation on which doctrine can develop to resolve church-state disputes in a way that contributes to bridge building, the search for common ground, and civil compromises. While each of these principles and values are relevant to the interpretation of the Free Exercise Clause and the Establishment Clause of the First Amendment, (2) they are equally important outside of the adjudicatory sphere in working through legislative and administrative solutions to conflicts related to law and religion.

   Religious liberty is a fundamental right. It is grounded primarily in our commitment to human dignity. Living with dignity in a free society requires the recognition that the decision to adhere to the tenets of a religious faith, or to decline to do so, is the kind of life determining and identity defining choice that belongs as of right to the individual, and not to the state. (3) Religious liberty also serves instrumental goals. It provides a privately developed and independent source of moral values that can be used to monitor and check abuses of government power. (4) Many major movements for social change in American history were grounded in religious beliefs and benefited from the support of religious institutions. (5)

   Religious liberty, however, is only one of several fundamental rights grounded in a vision of human dignity. There is a panoply of rights, such as the right to marry or to have and raise children, that exists and extends beyond religious belief and practice. Recognizing the full nature and scope of human dignity does not undermine respect for religious liberty. We suggest that doing so reinforces religious liberty by grounding it in an understanding of human dignity accessible to and valued by both religious and non-religious people. (6)

   The free exercise of religion is recognized as a fundamental right because we do not trust the government or the majority to adequately protect the religious liberty of minorities. Accordingly, government must justify its abridgement of this right under some standard of judicial review. However, determining that a right is fundamental does not assign any heightened moral or utilitarian value to the decision to exercise the right or the way the right is exercised. Thus, one can recognize a right is constitutionally protected while criticizing the way that a person or group chooses to exercise the right. (7)

   This can be easily seen if we are talking about other rights, such as freedom of speech. People who exercise this right and talk a lot are no more worthy of respect than quiet individuals who are more judicious and speak less often and less loudly. Further, we protect speech even when we consider the message being expressed to be morally reprehensible, (8) such as the hurtful, invidious speech expressed by members of the Westboro Baptist Church at the funerals of American soldiers killed while serving their country. (9)

   In a basic sense, when we protect a right, we are protecting the right to act wrongfully in the eyes of the majority. This is the essence of religious liberty. Many devoutly religious individuals believe that other faiths are false and dangerous in that they lead people away from truth. Yet we protect all faiths, whatever their merits or failings. The same analysis applies to other rights. We do not only protect the exercise of rights that best reflect the majority's values. It is constitutionally counterintuitive to insist that we should only protect the best religions, the best speech, or the best marriages. (10)

   Religious liberty is an inalienable right. This means that religious beliefs and commitments are determined by the individual and voluntary private associations, not by the state. We do not determine religious truth on transcendent matters or modes of worship at the ballot box or debate these matters in the legislature. Also, government is not vested with the authority to speak for individuals to G-d. Putting the matter in personal terms, no government official or institution is vested with the authority to speak to G-d in my name.

   Our constitutional system recognizes both the virtues and the failings of our people. It assumes that while people will often try to use private and public power to benefit the community, everyone also has the tendency to act to aggrandize power, promote one's status, and accrue wealth and resources. The structure of the Constitution deals with this reality by decentralizing and diffusing power among the branches of government and between the national government and the states. The religion clauses of the First Amendment are similarly grounded in a commitment to checks and balances. (11) To take these human failings into account, courts and the political branches of government must review with some suspicion free exercise claims that provide substantial secular benefits to the claimant and must employ some framework to limit the costs and harms that the protection of free exercise rights imposes on third parties or the public interest. (12)

   Religious equality, as well as religious liberty, is also a foundational principle. People of all faiths and those who are not religious are entitled to be treated by government with equal respect. This requirement extends to material interests and to status in the community. Religious minorities and non-religious people cannot be treated as if they do not exist or are unworthy of recognition. They are...