Hands off: when and about what.

• Author: Greenawalt, Kent
• Position: Symposium: The Supreme Court's Hands-Off Approach To Religious Doctrine

1. TWO GENERAL THOUGHTS

   I was very pleased to have the chance to comment on these four thoughtful and challenging papers when they were delivered orally at the Association of American Law Schools (AALS) Convention in January, and I am glad to have the opportunity to share some of my unsystematic thoughts about their published versions. I begin with two general observations before addressing the individual essays in turn.

   When I came up with the phrase "Hands Off' to liven the title of my article on judicial resolutions of property disputes generated by splits in religious groups, (1) I had not reflected on the wide range of issues that might be couched similarly. The themes of the AALS symposium and the substance of these papers, as well as Samuel Levine's Introduction, show just how broadly that concept may stretch. A great many problems regarding the law of the religious clauses (2) might be put in terms of whether the government should refrain from involving itself with religion.

   With recognition of the hands-off implications of various issues, we need to keep in mind an important caution. That concept is far from capturing all the constitutional values that are relevant, and the dangers of hands on are much more worrisome in some instances than in others.

   Here is one illustrative comparison. Were the courts to delve into religious doctrines to resolve intrachurch property disputes, they would be choosing the understanding of one group of sincere worshippers over the understanding of another such group. These disputes arise just because practitioners understand the requisites of their faith in sharply opposed ways. To decide in favor of one side promotes the exercise of religion of that side at the expense of the exercise of religion of the other side. By contrast, if the courts make some inquiry into the content of the religious belief of an individual who seeks an exemption from some standard requirement (say, to be willing to work on Saturday in order to receive unemployment compensation), (3) it may fail to keep its hands off; but it does something that is necessary to facilitate certain forms of free exercise, it does not need to resolve any competing religious claims, and it does not frustrate the religious exercise of one of two competing groups. (4) One may conclude (as I do) that the reasons for the government to stay out of assessing religious claims is much stronger when resolving disputes by reference to church doctrine than when the content of an individual's claim is at stake, and that the value to free exercise of making the latter inquiry is well worth the cost. But whatever conclusion one draws about this particular comparison, one needs to keep in mind that the rubric of hands off is one possible beginning, not the end, of analysis,

   My second general point concerns a difference between what one needs to resolve in theory in order to have a coherent, systematic approach to a range of issues, and what actual decisionmakers must settle in order to deal with most practical issues. Despite the aspirations and entirely appropriate efforts of legal scholars to critique murky confusions and compromises and offer proposals to clarify, judges and other legal actors manage to stumble along with fair success without resolving certain deeply troubling theoretical issues. One such issue is exactly what constitutes legislative intent. Another may be what precisely counts as religious for various constitutional and statutory purposes. (5) Of course, if the law requires classification in terms of religion, decisionmakers need some notion of what religion is. A number of scholars, including myself, have offered suggestions for how to draw the necessary line(s). (6) But if in the vast majority of cases, a claim or attribute is definitely religious or definitely not religious without regard to which of the competing approaches one follows, judges may manage adequately almost all of the time without clearly adopting one approach in lieu of others. To generalize, uncertainty about the precise way to resolve one element in a chain of elements necessary to resolve a particular claim may or may not seriously undermine the entire effort. It is at least possible that religion clause law and related legal areas can function reasonably well in treating religion as special, without an authoritative settlement of just how to draw the line between religion and nonreligion.

2. NOT HAVING TO DEFINE RELIGION AS ONE REASON NOT TO TREAT RELIGION AS SPECIAL

   My last point leads naturally to the essay by Provost Eisgruber and Dean Sager. They suggest that the very effort to define religion may involve undermining the egalitarian values of the religion clauses by "creating a sphere of orthodoxy." (7) The authors have elsewhere mounted a powerful argument that the crucial value of religious clauses is to build a protective fence against discrimination--that the application of the clauses should involve treating religious beliefs and practices like analogous nonreligious beliefs and practices, rather than treating religion better or worse than analogous nonreligion. (8) Their position is well illustrated by the two Ms. Campbells who are driven by conscience and compulsion to operate soup kitchens--one Ms. Campbell resting on the teaching of her faith, the other moved by a nonreligious response to suffering of the poor. (9) The authors strongly believe the two women should be treated in the same way; that approach will avoid any necessity to figure out which claims are religious. (10) I shall return shortly to this illustration, after making a few quick observations.

   The strongest reasons that Eisgruber and Sager have for not treating religion as special do not concern problems of definition, and my responses to their main arguments are in an essay that considers their compelling book-length treatment. (11) In any case in which the matter is crucial and the answer is in doubt--a very small percentage of cases--the need to decide the borders of religion is troubling, but that is not a major basis to decide whether religion should ever be treated differently from analogous nonreligion. (12)

   If one believes, as I do, that religion should sometimes be regarded distinctively by the law, it does not follow that the constitutional line under the religion clauses will always be to distinguish religious claims from analogous nonreligious ones. Thus, I have no doubt that one aspect of religious liberty under the Constitution is a freedom of atheists and agnostics not to embrace religion, and I also believe that nonreligious conscientious objectors to military service must, constitutionally, be treated like religious objectors. (13) Once a court determines that in a particular context religious and nonreligious claims must be treated equally, it does not need to determine if a particular claimant is religious. Such a judgment, however, may still be necessary in other cases for which the presence of religious elements may be crucial.

   The Eisgruber-Sager position is most appealing when claimants seek exemptions from ordinary legal requirements. I find the position difficult to sustain for many Establishment Clause issues. The government cannot teach the truth or falsity of religious propositions; it can teach the truth or soundness of many assertions in the realm of political philosophy ("liberal democracy is a better form of government than autocracy") and morality ("we have a basic responsibility to help others"). Of course, a public school cannot compel students to believe any of these views, but it can offer them as true or sound in a way it cannot offer "Jesus Christ is our Savior." (14)

   Another domain in which it is hard for the law to avoid saying what is religious is that of discrimination, Statutes bar discrimination on grounds of religion, (15) and if the government itself discriminated on that basis in employment, or in many other transactions, it would act unconstitutionally. If a government official refuses to hire someone because she does not like his appearance, that is not unconstitutional; if she rejects him because he wears a yarmulke or a cross, that is unconstitutional. In such instances, a court must determine what amounts to discrimination on grounds of religion.

   Now, to the exemption issue raised by the Ms. Campbells. The Eisgruber and Sager approach to the problem would not require a court to decide what counts as religion, but it might need to reconstruct the individual's beliefs to ascertain the strength of his or her claim. The authors approve assessment of a "phenomenological claim about what the claimant in fact believes" (16)--an approach the Supreme Court has taken in cases of unwillingness to participate in making armaments (17) and unwillingness to work on Sundays...