Law and Religion.

• Author: Smith, Steven D.

LAW AND RELIGION. Edited by Rex J. Ahdar. Ashgate/Dartmouth: Aldershot, Burlington USA, Singapore, Sydney. 2000. xiii, 229 pp.

Discussions of religious freedom in the United States tend to be a pretty parochial affair. Lawyers, judges, and scholars in this country usually limit ourselves to debating the meaning and significance of our Constitution, our history, and our precedents. We know, of course, that issues of religious freedom arise elsewhere--almost everywhere, in fact--and we may even address these issues when we are discussing matters of international law or foreign policy. But we seem to suppose that we ourselves have little to learn from our counterparts in other countries. Or perhaps, acting on an implicit assumption of "American exceptionalism," we imagine that our own constitutional provisions are so distinctive that discourse elsewhere would simply not be relevant to understanding our law. In any case, although scholars in other countries are often well-versed in U.S. law on religious freedom, it is rare for scholars or jurists in the United States to turn to a Canadian case or an interpretation of the European Convention on Human Rights for help in considering an issue of religious freedom that arises in the United States. (1)

This insular focus would be understandable, perhaps, if the U.S. discourse of religious freedom were in superb condition. But everyone seems to agree that it is not. The title to Marie Failinger's contribution to the present volume--"Wondering after Babel" (2)--is indicative. Michael McConnell's essay expresses a virtual consensus: the law of religious freedom in this country is "chaotic, controversial and unpredictable"--"hopelessly inconsistent." (3) So the time seems opportune to expand the horizons. We might benefit from some wisdom from abroad.

This book, edited by Rex Ahdar, a professor at the University of Otago in New Zealand, attempts to initiate a more inclusive dialogue by collecting original essays on law and religion written by leading scholars not only from the United States but also from England, Australia, New Zealand, and the Netherlands. (4) Such a project encounters predictable problems: the essays vary in quality, and a "ships passing in the night" character is sometimes apparent. Still, all in all, the book is a valuable contribution to the effort to bring a broader range of insights and experience to bear on the problems of religious freedom.

But the book's main value, a skeptic might object, lies mostly in dashing false hopes that a more cosmopolitan exchange will yield valuable insights. I will explain why I think this skeptical conclusion would be mistaken. Still, it is true that on one level the essays seem calculated to provide occasions for transnational commiseration more than to open up sources of fresh wisdom. If there is a legal system that has found a viable and attractive approach to the problems of religious freedom, that system is not revealed in these essays. On the contrary, despite some significant differences in different nations' approaches to religion, (5) the analyses and front-line reports from other countries often seem drearily familiar. Religious freedom, one might conclude, seems to present basically the same intractable political and conceptual problems everywhere.

Well, not quite everywhere--or at least these essays would not support that global diagnosis. In fact, although the range of legal experience reflected in this volume is admittedly much broader than that invoked in the typical U.S. discussion, the conversation is still in a sense intramural. All of the contributors come from countries that are firmly entrenched in what Samuel Huntington's recent and much discussed study classifies as "Western" civilization. Huntington, a political scientist at Harvard, argues that the most appropriate unit for understanding politics and culture is not the nation-state but rather the "civilization": commonalities among nations within a given civilization are more important than variations, whereas differences among civilizations provide the main lines of division that will shape politics. (6) Applying Huntington's categories, we notice that the essayists in this book are either from England, or from countries whose legal and political systems descend from England, or from just across the Channel. There are no contributors from Muslim countries, or from India, or China, or even from Russia or another legal system associated with the Orthodox branch of Christianity. And as Huntington's analysis would predict, despite their differences the essayists largely share a broad but discernible orientation toward the issues of religious freedom.

This observation is not intended as a criticism of the book. Intra-civilizational dialogue is a worthy project; it is more than we have typically managed in the past, and is not to be spurned just because it is not also inter-civilizational in character. Indeed, the incomprehension and suspicion that legal scholars in the United States often exhibit toward, say, Christian fundamentalists who live almost in their own backyards might prompt us to wonder whether obstacles of cultural incommensurability would preclude a genuine conversation between Western scholars and people who speak from, say, a thoroughly Islamic worldview--though the effort certainly seems worth making. My point, in any case, is that the very sameness, so to speak, of the problems encountered in other Western countries may itself be revealing: it suggests the possibility that, contrary to a common supposition, our frustrations might be less the result of peculiarities in U.S. law--of the celebrated "conflict between the clauses," for example and more the product of deeper and longer-term assumptions and tendencies of Western civilization generally.

THE INTRACTABILITY OF FREE EXERCISE

Consider, for example, the by now almost ancient question of whether religious objectors should be exempted from generally applicable laws that burden the exercise of their religion. Should Quakers be excused from the military draft? Should Native Americans who use peyote in worship be exempted in that context from a state's drug laws? It is well-known that after a period in which the U.S. Supreme Court purported to mandate exemptions for the exercise of religion subject to a "compelling interest" balancing test, the Court changed direction just over a decade ago and ruled that exemptions are not constitutionally required. The change was widely criticized, but congressional efforts to restore greater protection for religious exercise have been rebuffed by the Court.(7) Hardly anyone seems happy with the current state of the law in the Unite States. (8)

Critics who favor more ample protection often blame the current state of affairs in part on a supposed "conflict between the clauses": the First Amendment's nonestablishment clause, which has often been construed to mean that government cannot "aid" or "advance" religion, is thought to make it more difficult for courts to interpret free exercise as mandating exemptions that in an important sense aid religion. Those who adopt this diagnosis sometimes argue that one ought to treat the First Amendment as containing only a "religion clause"--in the singular--devoted to the unitary purpose of protecting religious freedom; (9) in this way, it is thought, the "no aid" impediment to full protection for free exercise might be eliminated. In addition, proponents of more fulsome free exercise protection may attribute current problems in part to the U.S. Constitution's less than lucid wording; a more carefully drafted legal provision might fend off the fettered interpretation that the modern Court has devised. Hence, these proponents may support proposals for more precise and encompassing legal language, to be adopted by statute--such as the Religious Freedom Restoration Act invalidated by the Supreme Court in Boerne v. Flores--or perhaps even by constitutional amendment.

Professor McConnell has contributed as significantly to these discussions of free exercise as anyone in the U.S. legal academy, consistently advocating more encompassing free exercise protection. His essay in this volume continues in this vein. The essay opens by describing the clash between the establishment and free exercise clauses and the associated tension in the purposes ascribed to the First Amendment in matters of religion. Some think the provision is mainly intended to ensure "separation" between government and religion, McConnell reports; others see the goal as "neutrality," while still others say that the overall objective is simply "religious liberty." (10) McConnell then turns to the problem of free exercise exemptions, noting that even when legislatures choose to accommodate the exercise of religion, "[t]he constitutionality of these accommodation statutes is frequently challenged under the Establishment Clause, on the theory that they `favour' religion over non-religion." (11) After a survey of some establishment clause issues, McConnell concludes by listing possible "solutions," which he frames in terms of the possible responses to the previously described conflict between the clauses. We could maintain strong commitments to both clauses with their associated competing values (thus reinforcing the existing incoherence) or, contrariwise, retreat from both commitments (thus subjecting religious minorities to the vicissitudes of democratic politics) or we could adhere to a strong nonestablishment commitment while diluting free exercise protection, thereby turning the Constitution into a "force for secularization." Conversely, the United States could relax the nonestablishment concern while retaining the dedication to free exercise. Consistent with his long-articulated views, McConnell endorses this last alternative. (12)

McConnell's essay is concise, informative, elegantly structured, and carefully reasoned. But is his...