Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses.

• Author: Garvey, John H.

There is something undeniably alluring about this corner of the First Amendment. One reason for its attraction is that the primary legal materials are, or seem to be, compact and self-contained. There is the language of the First Amendment,(1) 178 cases,(2) and an odd statute or two.(3) Cognate areas of constitutional law -- like the Speech and Press Clauses -- have less influence than they maybe should, so you safely can feel like you've got a grip on the whole field. A second thing is that the law as it now stands has some thorny problems built into it. Solving these would be like proving Fermat's last theorem. You could make a name for yourself by doing it. A third is that the principle of religious liberty matters a lot to people who are religiously serious. Many (though certainly not all) of the leading scholars in the field care about it because religion plays an important part in their own lives.

Jesse Choper and Steven Smith have written two wonderful books about the quest for a principle of religious liberty -- two books that ought to be sold as a set. Choper thinks he has found such a principle (more precisely, four of them); Smith thinks this is demonstrably impossible. Of course they're both wrong, but I wish I could make as convincing a case for this proposition as each of them does for his.

I

Choper is an old-fashioned legal scholar who reads cases carefully and worries about neutral principles, workable rules, strong rights, and legal process. His ilk have made great treatise writers, ALI reporters, and casebook writers (he himself has written a couple of best-sellers). Until the 1970s it generally was agreed that this is what it meant to be a good legal academic. There is disagreement about this now, and less appreciation than there ought to be for the qualities that Choper displays in his writing. From the beginning of his career he has worried about the place of religion in constitutional law.(4) He has given the problem a lot of thought.

His book is an attempt to improve First Amendment law by restating it in a few clear rules. The rules should be coherent with one another and clear enough to solve particular cases. Choper offers four -- two for each of the religion clauses. Here's a way to keep them in mind:

1. Intentional 2. Burdensome Free Exercise disadvantage effects 3. Intentional 4. Beneficial Establishment advantage effects

The main question is whether the government's action threatens religious liberty. If it does, it (speaking very generally) will be be unconstitutional. Actions that burden religion pose a greater danger of this than actions that benefit it, so we can treat free exercise and establishment differently. Intended effects are more worrisome than unintended ones (for reasons I'll get to), so we can further subdivide the free exercise and establishment rules along those lines. That's the big picture. Laws get progressively easier to defend as you go from Rule 1 to Rule 4. Intentional harm is almost automatically invalid (Rule 1). Burdensome effects warrant relief if they're of a certain kind, and if an exemption is not too costly, and if the claimant does alternative service, and so on. (Rule 2). Programs that intentionally favor religion are OK unless they threaten religious liberty (Rule 3). Accidental benefits to religion are OK even if they do threaten religious liberty, unless they have no secular effects (Rule 4).

This scheme would require some changes in the law. The Free Exercise Clause would provide more protection than it does: Rule 2 requires some exemptions from neutral laws that burden religious claimants.(5) The Establishment Clause on the whole would be more permissive than it is: Rule 3 allows some official acknowledgment of religion; Rule 4 permits more aid to parochial schools.(6)

Opinions vary about whether these would be salutary changes. I think they would. Politics aside, Choper's rules have this clear advantage over the current law -- they are more consistent. Fifteen years ago the situation was worse than it is now. The courts applied a free exercise rule of accommodation and an establishment rule of separation, so that the same practice simultaneously might be required and forbidden.(7) Recently the law under both clauses has been converging on a principle of neutrality, but it's not clear to me what we mean by neutrality, and there are still lots of cases that don't conform to any such principle. Choper, by contrast, never loses sight of the goal of religious liberty.

There are some internal inconsistencies. One that puzzles me is that Choper defines the term "religion" differently for different rules (Choper, pp. 64, 103-05). This is not an original sin. Laurence Tribe did it some time ago because it had a neutralizing effect on other inconsistencies in the old regime, which he favored. A broad free exercise definition excused many people from obedience to laws they found offensive; a narrow establishment definition reduced the attendant friction between the two clauses (which stood for the conflicting principles of accommodation and separation).(8) But this doesn't explain Choper's behavior. He gives religion a narrow meaning for exemption purposes.(9) And his theory does not rest on inconsistent principles -- he does not believe in separation. I think Choper is driven to this inconsistency by a deeper problem in his theory, to which I will turn next. For the moment I will just say that it's odd to find this sort of wrinkle in a book that makes such a virtue of consistency. The First Amendment uses the word "religion" only once.(10) We should try pretty hard to give it one meaning.

Let me step back from these details, now, and look at the deeper problem. The thing that bothers me most about Choper's book is how strangely disembodied his principle of religious liberty is. You might suppose that it's self-explanatory: the point of religious liberty is to let people practice their religion, just as freedom of speech lets them speak. We might see then some discussion about why religion is important, as in free speech books we inevitably see a theory about why speech is important. It's a pretty close analogy. But Choper instead uses the pattern of race discrimination. This is why intent plays such an important role (as it does in equal protection theory), and why we have to think separately about laws that give believers an advantage (the issue of affirmative action, transposed).

Are race and religion alike? Here is the argument Choper makes for Rule 1:

Perhaps the strongest justification for strict judicial scrutiny of any official attempt to accord persons less than equal respect and dignity because of their religious beliefs or race rests in the fact that both throughout history and during more recent times, efforts to do so have been similarly rooted in "hate, prejudice, vengeance, [and] hostility." . . . [B]oth traits have been the strikingly similar objects of public (and private) stereotyping, stigma, subordination, and persecution. . . . [This behavior rests] on assumptions of the "differential worth" of religious and racial groups, including judgments of their odiousness or inferiority. [pp. 42-43; footnotes omitted]

There is certainly something in this. The two types of prejudice often run together. Think about African slaves, Asian Buddhists, Eastern European Jews, Mediterranean Catholics, and Caribbean practitioners of Santeria...