The Supreme Court's hands-off approach to religious doctrine: an introduction.

• Author: Levine, Samuel J.
• Position: SYMPOSIUM

Although the current state of the United States Supreme Court's Religion Clause (1) jurisprudence is an area of considerable complexity, (2) the Court's approach is largely premised upon a number of basic underlying principles and doctrines. In 1971, the Court decided Lemon v. Kurtzman, (3) which delineated a three-part test for determining whether a law violates the Establishment Clause. (4) While the precise contours of the Lemon test have been subject to substantial refinement and modification, (5) the decision has not been overruled, and it remains the starting point for the Court's rulings in this area. (6) In 1990, in Employment Division v. Smith, (7) the Court seemed to upset settled free exercise law, in favor of a broad policy rejecting religious challenges to neutral statutes of general applicability. (8) The Court's decision in Smith prompted considerable criticism, (9) as well as subsequent legislation aimed at reversing and limiting its effect. (10) Nevertheless, the decision stands and, with some exceptions, represents the current state of free exercise law.

This Symposium issue of the Notre Dame Law Review explores another underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The program description invited a variety of modes of analysis, ranging from descriptive considerations of the extent to which the Court's doctrine can, indeed, be characterized as hands-off, to normative justifications for--and critiques of--the Court's approach, to more practical and consequentialist arguments supporting or opposing the Court's position. (11)

On a descriptive level, there is ample Supreme Court case law supporting the proposition that the Court generally eschews decisionmaking that requires adjudication of religious doctrine. (12) As a thresh old matter, as far back as 1944, the Court emphasized that it may not determine the "truth or falsity" of a religious belief. (13) More recently, beginning in 1969, when faced with differing views of religious tenets, the Court has refused to engage in "interpretation of particular church doctrines and the importance of those doctrines to the religion," (14) and has stated plainly that "[c]ourts are not arbiters of scriptural interpretation." (15)

Notably, though, in some cases, aspects of the majority's hands-off approach have faced objections leveled by a number of Justices in concurring and dissenting opinions. (16) Moreover, the current iteration of the Court's approach arguably represents the final product of a process in which, over the course of just a few decades, the hands-off doctrine has undergone considerable modification and extension. (17) Additionally, there remain areas of church-state law in which courts may not always be able to avoid the types of judgments that the hands-off approach seems to preclude. (18) Nevertheless, just as Smith and Lemon continue to depict the general contours of the Court's approach to Free Exercise and Establishment Clause law, respectively, the hands-off approach accurately describes the Court's general attitude toward resolving questions of religious doctrine. (19)

Therefore, rather than addressing the substantive nature of the Court's hands-off doctrine, the contributors to this Symposium focus on the normative and practical justifications for the Court's approach. As Professor Richard Garnett observes in his Symposium essay, (20) descriptively, the hands-off rule is clear: "state actors should not render religious decisions--decisions involving the resolution of religious questions or the enforcement of religious obligations; we should not, the rule would suggest, use secular law to assure observance of practices with religious significance." (21)

The question that arises, Garnett explains, is then a deceptively simple one: "[b]ut, why not?" (22) In an effort to respond to this question, Garnett engages in a thoughtful and admittedly provocative analysis of various justifications that have been offered for the hands-off approach:

I want to suggest that some of the justifications often invoked for the rule are not entirely satisfactory and that, accordingly, allowing such justifications to shape the rule and its applications could also be "misguided." In perhaps an even riskier move, I will also suggest that, notwithstanding the "complexity of [the relevant] considerations," one particular justification for the hands-off rule should have primacy of place. (23) Specifically, Garnett insists that, "It is not that religious questions are hard, weird, or irrelevant." (24) Instead, building on his earlier work, (25) Garnett favors "the most ancient rationale of all" for the hands-off approach, "namely, that secular authorities lack the power to answer some questions--religious questions--whose resolution is, under an appropriately pluralistic political theory, left to other institutions." (26) According to Garnett, "[t]his rationale ... is not only the strongest; it also pulls the hands-off rule from the margins of First Amendment esoterica to the very heart of religious freedom and church-state separation, properly understood." (27)

In his illuminating contribution to the Symposium, Professor Andrew Koppelman likewise aims to answer the basic question of "why it is regarded as appropriate for government to keep its hands off religious doctrine." (28) Koppelman responds through the ambitious framework of a broader defense of the hands-off doctrine against objections it has faced from commentators on a variety of conceptual grounds. (29) After citing a number of "familiar considerations" supporting "[g]overnment neutrality toward religion," Koppelman cites "one consideration that is often overlooked: the idea that religion can be damaged and degraded by state involvement with it." (30)

Significantly, as Koppelman emphasizes, his position is "friendly to religion but, precisely for that reason, is determined to keep the state away from religion. It is associated with the most prominent early proponents of toleration and disestablishment." (31) In short, he explains, "the corruption argument depends on a claim that religion is, in some way, a good thing." (32) Therefore, he concludes, "[t]he hands-off rule ... is an application of the corruption rationale. The state is to keep its hands off religion precisely for the sake of religion, because religion will be damaged by contact with the state." (33) In the process of elucidating this position, Koppelman defends the hands-off approach against objections directed at the "coherence of its intellectual underpinnings." (34)

Like Koppelman, Provost Christopher Eisgruber and Dean Lawrence Sager frame their Symposium essay as a response to objections to the Supreme Court's hands-off approach. (35) However, unlike Koppelman, they understand the purpose Of the religion clauses as "not to protect religion per se, but to protect Americans from a certain kind of governmental malfeasance that proceeds against the backdrop of a religious and religiously diverse society." (36) In their view:

[T]he point of the Religion Clauses is not to affirm (or deny) the value of religious practices, any more than the point of the Free Speech Clause is to affirm (or deny) the value of flag burning. The point of the Religion Clauses is instead to prohibit the government from showing the kinds of favoritism historically associated with religious persecution, and any doctrine that would involve courts in affirming (or denying) the value of religious practice would compromise rather than advance that purpose. (37) Thus, relying on their groundbreaking book on religious liberty, (38) and employing what they characterize as a "shamelessly provocative title," (39) Eisgruber and...