Religious liberty as a positive and negative right.

• Author: Green, Steven K.
• Position: Symposium: A Second-Class Constitutional Right? Free Exercise and the Current State of Religious Freedom in the United States

1. INTRODUCTION

   In several articles Professor Fred Gedicks has argued that the rules governing the religious liberty interests vary depending on the application and functionality of that interest. For example, Gedicks writes in his "Two-Track Theory" that when the government is distributing benefits to a large class of individuals, neutrality should be the controlling paradigm, such that religious entities can participate in the receipt of benefits, and even use those benefits for religious purposes, without violating the Establishment Clause. (1) Conversely, when the government is speaking itself or advancing its own policy goals in a government administered program, that separationism should be the dominant paradigm. (2)

   Gedicks schema, offered as an interpretative model for the Establishment Clause, is a refinement of a common approach to religion clause analysis generally: divide and conquer. (3) Conquer the religion clause analytical conundrum by dividing the clauses according to the values represented. A brief glance at the religion clauses quickly reveals that there are two clauses--free exercise and nonestablishment--suggesting (at least) two values. The fact that the religion clauses contain two or more principles lends itself to a comparative model.

   The modern Supreme Court has struggled with whether the clauses represent primarily a unitary value, complementary values, or distinct values that may be at tension. On one hand, Justice Wiley Rutledge wrote in his dissent in Everson v. Board of Education that "'[r]eligion' appears only once in the [First] Amendment. But the word governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid 'an establishment' and another, much broader, for securing 'the free exercise thereof.'" (4) Relatedly, Justice William Brennan, a leading student of the religion clauses on the Court, viewed the clauses as promoting complementary values, declaring that the Establishment Clause was "a coguarantor, with the Free Exercise Clause, of religious liberty." (5)

   More frequently, the Court has seen the clauses as promoting distinct values, though interrelated, that sometimes are in conflict. (6) The Court has said that the nub of a free exercise violation rests on coercion. (7) With respect to the Establishment Clause, however, the Court has generally been unwilling to restrict the purposes so narrowly. As Justice Hugo Black said for the Court in Engel v. Vitale:

   Although these two clauses may in certain instances overlap, they forbid two quite different kinds of government encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. (8) The resistance of a majority of the Court to cabin the Establishment Clause value(s) too narrowly is exemplified in the exchanges between the majority, concurring, and dissenting opinions in Allegheny County v. ACLU and Lee v. Weisman that offered competing analytical paradigms of endorsement or coercion. (9) If all that the Establishment Clause protected against was coercion, remarked Justices Sandra O'Connor and Harry Blackmun in the respective cases, then the Establishment Clause would be superfluous to the Free Exercise Clause, making the former a "redundancy." (10)

   Thus, the Establishment Clause must serve an additional function beyond enhancing religious exercise. But merely acknowledging an additional purpose behind nonestablishment begs the question of whether it is still chiefly a different way to get to a common goal. The debate continues over whether enhancing religious liberty remains the primary unifying value of both clauses, such that those secondary values represented in Establishment Clause are subservient to the primary goal of enhancing religious exercise.

   This Article takes a different approach to this debate about whether distinct values are represented in the two religion clauses. The differences between the clauses turn not so much on distinct substantive values particular to each clause but in the means of achieving those shared values. The Establishment Clause is primarily for purpose of enhancing religious liberty writ large: ensuring religious equality; guaranteeing disentanglement of religion and government; ensuring the legitimacy of the secular democratic order; and diffusing religious divisiveness. As Justice Blackmun remarked in his Lee concurrence: "The Establishment Clause protects religious liberty on a grand scale: it is a social compact that guarantees for generations a democracy and strong religious community--both essential to safeguarding religious liberty." (11)

   Conversely, the Free Exercise Clause has a purpose of protecting religious liberty on a small scale: protecting freedom of conscience and the ability to practice one's religious beliefs by preventing government coercion. (12) Thus, absent a crossover to protect the autonomy of religious institutions that has both Free Exercise and Establishment Clause qualities, nonestablishment ensures distinct qualities of religious liberty unrelated to free exercise and does so on a grander scale.

   In this sense, nonestablishment is the superior religious liberty clause. So understood, religious free exercise is the second-class religion clause right, as the title to this symposium asks.

   Second--and to the heart of my thesis--the Establishment and Free Exercise clauses interact with and respond to government in different ways. Free exercise, by virtue of its more limited quality, is essentially a negative right--a shield against government coercion, but one that does not place any affirmative obligations on the government. (13) As stated by Professor Carl Esbeck: "As with all freedoms guaranteed by the Bill of Rights, the Free Exercise and Establishment Clauses protect 'negative' rights. That is, the Religion Clauses tell the government what it may not do." (14)

   Professor Esbeck is half right; whereas government may sometimes permissively accommodate religious practice, (15) government generally is under no duty to enhance free exercise and is only required to remove government burdens on that practice. (16) In essence, the "Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government." (17)

   But unlike free exercise, the nonestablishment value can tell the government what it must do. Thus, nonestablishment has both negative and positive qualities, not only preventing government from engaging in conduct that endorses, favors, advances, or disparages religion, but also imposing affirmative obligations on government to act in ways that enhance Establishment Clause values. (18) This latter obligation of enhancement is unique to the nonestablishment religious liberty value. (19)

2. WHY THIS SCHEMA

   As stated, the nonestablishment value is concerned with ensuring religious equality, guaranteeing disentanglement of religion and government by protecting the autonomy of religious institutions, ensuring the legitimacy of government, and diffusing religious divisiveness. (20) These values place affirmative obligations on the government to act in a particular, non-religious manner, to tailor its policies and programs in particular, non-religious ways. Thus, as we saw in the high school football game prayer case, Santa Fe Independent School District v. Doe, the government at times must affirmatively disassociate itself from impressions of religious endorsement, even when it is not itself speaking. Although the Santa Fe Court majority viewed the student-led prayer as comparable to government speech due to the extensive school control over the football game, the holding did not turn on such a finding. (21) Rather, the Court held that due to the heightened school involvement in and control over the game and pre-game activities, observers would perceive the private religious messages as being delivered with the approval of the school administration. (22) The school was obligated to diffuse such impressions of endorsement. Endorsement, therefore--assuming it still remains as a nonestablishment value--prohibits more than the government's own religious speech and also bars the government from associating itself with the religious speech of private individuals: "Indeed, the very concept of 'endorsement' conveys the sense of promoting someone else's message." (23) This requirement not to associate with private religious messages in turn places obligations on the government to act in some remedial fashion. As Justice O'Connor remarked in her controlling concurring opinion in Capitol Square Review v. Pinette (the Klan cross case in front of the Ohio Statehouse):

   The [Establishment] Clause is more than a negative prohibition against certain narrowly defined forms of government favoritism; it also imposes affirmative obligations that may require a State, in some situations, to take steps too avoid being perceived as supporting or endorsing a private religious message. (24) This requirement of affirmative disassociation is not based solely on principles of nonadvancement of religion. The Establishment Clause, as well as the overall structure of our Constitution, recognizes that America has a secular democratic government. The Constitution contemplates a secular public order, one in which government may promote liberal democratic principles to the exclusion of other ideologies, including religious ones. (25) Thus government may and should promote secular goals over religious goals. (26) This also means an affirmative obligation on government to maintain a secular public order, and a collective right of citizens to enforce this arrangement, which was underscored by the Court's...