Religion and state - A fresh theoretical start

Notre Dame Law Review

Volumn 75, Issue 2, 1999, Pages 579-650

  Sapir, Gidon ^a,b,c  

^a BAR ILAN UNIVERSITY   (Israel)

^b NORTHWESTERN UNIVERSITY   (United States)

^c Har Etzion Yeshiva ^*

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EID: 0033270098     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (274)

1. JOHN LOCKE, A LETTER CONCERNING TOLERATION (1689), reprinted in JOHN LOCKE: A LETTER CONCERNING TOLERATION IN FOCUS 17 (John Horton & Susan Mendus eds., 1991) [hereinafter TOLERATION IN FOCUS].
2. JOHN LOCKE, A LETTER CONCERNING TOLERATION (1689), reprinted in JOHN LOCKE: A LETTER CONCERNING TOLERATION IN FOCUS 17 (John Horton & Susan Mendus eds., 1991) [hereinafter TOLERATION IN FOCUS].
3. See id. at 24. For every church is orthodox to itself; to others, erroneous or heretical. Whatsoever any church believes, it believes to be true; and the contrary thereupon it pronounces to be error. So that the controversy between these churches about the truth of their doctrines, and the purity of their worship, is on both sides equal; nor is there any judge, either at Constantinople, or elsewhere upon earth, by whose sentence it can be determined. The decision of that question belongs only to the Supreme Judge of all men . . . . Id.
4. Id. at 52.
5. See id. at 18 ("[S]uch is the nature of the understanding, that it cannot be compelled to the belief of any thing by outward force.").
6. Id. at 14.
7. Stanley Fish, Mission Impossible: Setting the Just Bounds Between Church and State, 97 COLUM. L. REV. 2255 (1997).
8. BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 11 (1980); see also David A.J. Richards, Human Rights and Moral Ideals: An Essay on the Moral Theory of Liberalism, 5 SOC. THEORY & PRAC. 461 (1980).
9. BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 11 (1980); see also David A.J. Richards, Human Rights and Moral Ideals: An Essay on the Moral Theory of Liberalism, 5 SOC. THEORY & PRAC. 461 (1980).
10. JOSEPH RAZ, THE MORALITY OF FREEDOM (1986).
11. This argument - that the state must protect individuals and groups from coercion by private actors to be religious, and not only against its own coercion - is to introduce the notion of positive constitutional rights, i.e., that individuals have rights to certain affirmative governmental action and not only negative rights not to be treated in certain ways by the state. Positive constitutional rights are somewhat controversial and the United States Constitution for one is generally thought not to contain any. See Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (stating that the United States Constitution "is a charter of negative rather than positive liberties"); David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864, 886 (1986) (noting that Judge Posner's position "finds support in the constitutional language, in Supreme Court decisions, and in the history of the Bill of Rights"). Many European Constitutions, however, as well as international covenants and treaties (such as the UN Covenant on Economic and Social Rights and the European Community's Charter of Fundamental Social Rights), include positive rights. See Mary Ann Glendon, Rights in Twentieth-Century Constitutions, 59 U. CHI. L. REV. 519, 525 (1992) (stating that the American approach contrasts markedly with "the attitudes of the post-World War II European constitution-makers who supplemented traditional negative liberties with certain affirmative social and economic rights or obligations"). The inclusion of positive duties advocated here is limited though, as it requires merely state protection against the actions of third parties but not against impersonal influences such as the limited availability of funds.
12. This argument - that the state must protect individuals and groups from coercion by private actors to be religious, and not only against its own coercion - is to introduce the notion of positive constitutional rights, i.e., that individuals have rights to certain affirmative governmental action and not only negative rights not to be treated in certain ways by the state. Positive constitutional rights are somewhat controversial and the United States Constitution for one is generally thought not to contain any. See Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (stating that the United States Constitution "is a charter of negative rather than positive liberties"); David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864, 886 (1986) (noting that Judge Posner's position "finds support in the constitutional language, in Supreme Court decisions, and in the history of the Bill of Rights"). Many European Constitutions, however, as well as international covenants and treaties (such as the UN Covenant on Economic and Social Rights and the European Community's Charter of Fundamental Social Rights), include positive rights. See Mary Ann Glendon, Rights in Twentieth-Century Constitutions, 59 U. CHI. L. REV. 519, 525 (1992) (stating that the American approach contrasts markedly with "the attitudes of the post-World War II European constitution-makers who supplemented traditional negative liberties with certain affirmative social and economic rights or obligations"). The inclusion of positive duties advocated here is limited though, as it requires merely state protection against the actions of third parties but not against impersonal influences such as the limited availability of funds.
13. Some commentators argue that the right not to worship is already a part of the right to worship. In other words, according to this position it is impossible to divide freedom of and freedom from religion. For a detailed discussion, see infra text accompanying note 119.
14. Even in the United States, the Bill of Rights did not apply to the states until the post-Civil War adoption of the 14th Amendment, and at the time of its adoption, six of the 13 states maintained religious establishments. See LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE 25-62 (1986). It has also been argued that the First Amendment was enacted in part to protect state religious establishment from federal interference. See MARK DEWOLFE HOWE, THE GARDEN AND THE WILDERNESS 1-31 (1965).
15. Even in the United States, the Bill of Rights did not apply to the states until the post-Civil War adoption of the 14th Amendment, and at the time of its adoption, six of the 13 states maintained religious establishments. See LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE 25-62 (1986). It has also been argued that the First Amendment was enacted in part to protect state religious establishment from federal interference. See MARK DEWOLFE HOWE, THE GARDEN AND THE WILDERNESS 1-31 (1965).
16. See MICHAEL J. PERRY, RELIGION IN POLITICS, CONSTITUTIONAL AND MORAL PERSPECTIVES 16-17 (1997).
17. Indeed, in the United States, it is common to use the term "separation" even more narrowly, and to conflate separation merely with the strict interpretation of nonestablishment. See Michael M. McConnell, You Can't Tell the Players in Church-State Disputes Without a Scorecard, 10 HARV. J.L. & PUB. POL'Y 27 (1987) (offering a brief typology of First Amendment positions in an attempt to show that separationism is one among many interpretations of nonestablishment). However, because this work does not relate merely to the American discourse, I allow myself some leniency respecting the concept and use it, sometimes, the way it is used, for example, in my home country, Israel, to include all three concepts: freedom of, and from, religion, and nonestablishment. The point that I make in the text, however, is that if any of these three concepts does require separation, the first candidate is nonestablishment.
18. Michael M. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1433 (1990).
19. The expression is borrowed from Justice Black's majority opinion in Everson v. Board of Education, 330 U.S. 1, 16 (1947). Justice Black's opinion echoes Thomas Jefferson's words that the First Amendment "build[s] a wall of separation between church and state." Letter from Thomas Jefferson to the Baptists of Danbury, Connecticut (Jan. 1, 1802), in WRITINGS 510 (Merrill D. Peterson ed., 1984).
20. Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 207 (1992).
21. See, e.g., Ira C. Lupu, To Control Faction and Protect Liberty: A General Theory of the Religion Clauses, 7 J. CONTEMP. LEGAL ISSUES 357, 362 (1996) ("The state may help museums display artifacts, and hospitals deliver health care, but may not help religious organizations minister to souls, even if the ministry is commingled with activity of secular value."). Lupu himself merely presents this interpretation as one of two options to accomplish the goal of nonestablishment. He holds, however, that the neutrality interpretation is preferred. See id.
22. Sullivan, supra note 16, at 198.
23. Under this interpretation, the nonestablishment norm collapses into an antidiscrimination provision. See PERRY, supra note 12, at 15 (stating that "the nonestablishment norm is an antidiscrimination provision").
24. Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993, 994 (1990). Laycock illustrates this phenomena with reference to Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), in which Justice Brennan and Justice Scalia fundamentally disagreed on almost every issue in the case, but they both claimed to be neutral. Compare id. at 12-14 (Brennan, J.) with id. at 39-41 (Scalia, J., dissenting). Laycock believes that the disagreement and ambiguity regarding both the exact meaning and practical applications of neutrality is partially due to the fact that "[m]ost of us think of ourselves as fairminded, and so we tend to assume that our instinctive preferences are fair and therefore neutral." Laycock, supra, at 994.
25. Philip B. Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REV. 1, 96 (1961).
26. Laycock, supra note 20, at 1001.
27. Id. at 1002. A parallel position was adopted by the United States Supreme Court in Rosenberger v. Rectors of the University of Virginia, 515 U.S. 819 (1995). In Rosenberger, a university student organization, which published a newspaper with Christian editorial viewpoint, brought action against the university's denial of funds. The Court stated that "[t]he [Establishment] Clause does not compel the exclusion of religious groups from government benefit programs that are generally available to a broad class of participants." Id. at 861 (Thomas, J., concurring). The Court found that the program at stake was neutral toward religion. There is no suggestion, stated Justice Kennedy, that "the University created it to advance religion or adopt some ingenious device with the purpose of aiding a religious cause." Id. at 840. Thus, concluded the Court, provision of funding would not violate the Establishment Clause. See id.
28. Laycock, supra note 20, at 1003.
29. Id.
30. Laycock seems to reject this conclusion. See Douglas Laycock, The Benefits of the Establishment Clause, 42 DEPAUL L. REV. 373, 377 (1992) ("If the church-sponsored education and social services are indistinguishable from the church itself, then the tax support violates the Establishment Clause.").
31. Michael M. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 132 (1992).
32. Aharon Lichtenstein, Religion and State: The Case for Interaction, 15 JUDAISM 387, 396 (1966).
33. McConnell, supra note 27, at 137.
34. Laycock, supra note 20, at 1005.
35. The non-coercion standard was introduced in academic circles in the United States already in the early 1960s. See Jesse H. Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47 MINN. L. REV. 329, 330 (1963).
36. See Locke, supra note 1, at 18-19; see also McConnell, supra note 27, at 159.
37. This was the position of Justice Scalia in Lee v. Weisman, 505 U.S. 577, 631 (1992) (Scalia, J., dissenting). Scalia interpreted coercion narrowly, willing to recognize coercion only if imposed "by force of law and threat of penalty." Id. at 640.
38. See Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 661 (1989) (Kennedy, J., concurring in the judgment and dissenting in part).
39. Lee, 505 U.S. at 577.
40. Id. at 593.
41. Id. at 594.
42. See Sullivan, supra note 16, at 202. Obviously, the classification of a given case may be itself debatable. For example, the display of a free standing crèche on governmental property, whose constitutionality was examined in Allegheny, may be viewed as a mere acknowledgement of religion, as Justice Kennedy interpreted - joined by Rehnquist, White, and Scalia - or as endorsing a patently Christian message, as Justice Blackmun interpreted. Compare Allegheny, 492 U.S. at 578 (Blackmun, J.), with id. at 655 (Kennedy, J., concurring in the judgment and dissenting in part).
43. In some cases the requirements of the non-institutionalization interpretation will overlap the requirements of other interpretations. In general, institutionalization of religion will always be prohibited by the strict interpretation, and probably, in most cases, also by the neutrality interpretation. However, as long as it does not give religious institutions the coercive power of the state, institutionalization will be permissible under the non-coercion interpretation.
44. Laura Underkuffler-Freund, The Separation of the Religious and the Secular: A Foundational Challenge to First Amendment Theory, 36 WM. & MARY L. REV. 837, 972 (1995).
45. Kathleen M. Sullivan, supra note 16, at 206 (1992).
46. Michael W. McConnell, Political and Religious Disestablishment, 1986 BYU L. REV. 405, 413.
47. Lawrence B. Solum, Faith and Justice, 39 DEPAUL L. REV. 1083, 1096 (1990).
48. Sullivan, supra note 16, at 200.
49. Id. at 201 (emphasis added).
50. Id. at 197.
51. PERRY, supra note 12, at 74.
52. Id.
53. Consider for example the following two quotations, one by a reform Jew and the other by a Liberal Christian theologian: Traditional Judaism . . . relied heavily on what God "told" them. . . . Theologians term what God "said" to humankind God's revelation. That is, to begin with, God has a truth we do not have. But, what is hidden from us, God then makes known to us; God reveals it to us. For traditional Judaism, God's revelation is the Torah . . . . [L]iberal Jews have a different view of revelation. We place very much more weight than our tradition did on the human role in creating religion. We are also much less certain about exactly what God has revealed to us. Thus, we also have a more positive appreciation of changes in religious ideas. EUGENE B. BOROWITZ, LIBERAL JUDAISM 5 (1984). God is unchanging, but the demands of the New Testament are different from those of the Old, and while no other revelation supplements the New, it is evident from the case of slavery alone that it has taken time to ascertain what the demands of the New really are . . . . In new conditions, with new insights, an old rule need not be preserved in order to honor a past discipline. John T. Noonan, Jr., Development in Moral Doctrine, 54 THEOLOGICAL STUD. 662, 676-77 (1993).
54. Consider for example the following two quotations, one by a reform Jew and the other by a Liberal Christian theologian: Traditional Judaism . . . relied heavily on what God "told" them. . . . Theologians term what God "said" to humankind God's revelation. That is, to begin with, God has a truth we do not have. But, what is hidden from us, God then makes known to us; God reveals it to us. For traditional Judaism, God's revelation is the Torah . . . . [L]iberal Jews have a different view of revelation. We place very much more weight than our tradition did on the human role in creating religion. We are also much less certain about exactly what God has revealed to us. Thus, we also have a more positive appreciation of changes in religious ideas. EUGENE B. BOROWITZ, LIBERAL JUDAISM 5 (1984). God is unchanging, but the demands of the New Testament are different from those of the Old, and while no other revelation supplements the New, it is evident from the case of slavery alone that it has taken time to ascertain what the demands of the New really are . . . . In new conditions, with new insights, an old rule need not be preserved in order to honor a past discipline. John T. Noonan, Jr., Development in Moral Doctrine, 54 THEOLOGICAL STUD. 662, 676-77 (1993).
55. See generally PRESTON T. KING, TOLERATION 29 (1976); D.D. Raphael, The Intolerable, in JUSTIFYING TOLERANCE: CONCEPTUAL AND HISTORICAL PERSPECTIVES 140 (S. Mendus ed., 1988); Avi Sagi, haDat haYehudit: Sovlanut veEfsharut haPluralizm [The Jewish Religion: Toleration and the Possibility of Pluralism], 44 IYYUN 175, 176-77 (1995).
56. See generally PRESTON T. KING, TOLERATION 29 (1976); D.D. Raphael, The Intolerable, in JUSTIFYING TOLERANCE: CONCEPTUAL AND HISTORICAL PERSPECTIVES 140 (S. Mendus ed., 1988); Avi Sagi, haDat haYehudit: Sovlanut veEfsharut haPluralizm [The Jewish Religion: Toleration and the Possibility of Pluralism], 44 IYYUN 175, 176-77 (1995).
57. See generally PRESTON T. KING, TOLERATION 29 (1976); D.D. Raphael, The Intolerable, in JUSTIFYING TOLERANCE: CONCEPTUAL AND HISTORICAL PERSPECTIVES 140 (S. Mendus ed., 1988); Avi Sagi, haDat haYehudit: Sovlanut veEfsharut haPluralizm [The Jewish Religion: Toleration and the Possibility of Pluralism], 44 IYYUN 175, 176-77 (1995).
58. See Jeremy Waldron, Locke: Toleration and the Rationality of Persecution, in TOLERATION IN FOCUS, supra note 1, at 100.
59. The argument is not that a skeptic is sure to repress rival views. On the contrary, a skeptic will probably let his rivals be. But, such behavior based on a skeptical worldview would not be defined as toleration.
60. See, e.g., JOHN LOCKE, THE SECOND TREATISE OF CIVIL STATE AND A LETTER CONCERNING TOLERATION 127 (J.W. Gough ed., 1946) ("[T] rue and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force."); John Milton, A Treatise of Civil Power in Ecclesiastical Causes, in JOHN MILTON: SELECTED PROSE 296, 311 (C.A. Patrides ed., 1985) (1659) (stating that to force a ritual performance is "to compell hypocrisie, not to advance religion"). In the Jewish sources a limited version of such position is attributed to R. Me'ir Simaha of Dvinsk who has concluded that coercion is valid only when it brings about an internal change in the mind and heart of the person coerced, so that he assents to do what he was ostensibly forced to do. See 1 MEIR SIMHAH KAHAN, OR SAME'ACH 54-97 (1965) . Among Jewish contemporary authorities that took this line is SHAUL YISRAELI, AMUD HAYEMINI 95-96 (1966). The rule of coercion is applicable only as regards someone who wishes to fulfill the commands of the Torah. . . . But as regards those of our generation, whose non-observance derives from a lack of faith in Torah and its commands . . . the rule that a court (or its appointed delegate) should coerce them by physical means does not exist . . . for even if we subdue them physically, they will not be convinced of the truth of the mitsvah and will not agree to its observance willingly. Thus the purpose of coercion is not achieved . . . where this is certain, we are forbidden to touch a hair on their head. Id.
61. See, e.g., JOHN LOCKE, THE SECOND TREATISE OF CIVIL STATE AND A LETTER CONCERNING TOLERATION 127 (J.W. Gough ed., 1946) ("[T] rue and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force."); John Milton, A Treatise of Civil Power in Ecclesiastical Causes, in JOHN MILTON: SELECTED PROSE 296, 311 (C.A. Patrides ed., 1985) (1659) (stating that to force a ritual performance is "to compell hypocrisie, not to advance religion"). In the Jewish sources a limited version of such position is attributed to R. Me'ir Simaha of Dvinsk who has concluded that coercion is valid only when it brings about an internal change in the mind and heart of the person coerced, so that he assents to do what he was ostensibly forced to do. See 1 MEIR SIMHAH KAHAN, OR SAME'ACH 54-97 (1965) . Among Jewish contemporary authorities that took this line is SHAUL YISRAELI, AMUD HAYEMINI 95-96 (1966). The rule of coercion is applicable only as regards someone who wishes to fulfill the commands of the Torah. . . . But as regards those of our generation, whose non-observance derives from a lack of faith in Torah and its commands . . . the rule that a court (or its appointed delegate) should coerce them by physical means does not exist . . . for even if we subdue them physically, they will not be convinced of the truth of the mitsvah and will not agree to its observance willingly. Thus the purpose of coercion is not achieved . . . where this is certain, we are forbidden to touch a hair on their head. Id.
62. See, e.g., JOHN LOCKE, THE SECOND TREATISE OF CIVIL STATE AND A LETTER CONCERNING TOLERATION 127 (J.W. Gough ed., 1946) ("[T] rue and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force."); John Milton, A Treatise of Civil Power in Ecclesiastical Causes, in JOHN MILTON: SELECTED PROSE 296, 311 (C.A. Patrides ed., 1985) (1659) (stating that to force a ritual performance is "to compell hypocrisie, not to advance religion"). In the Jewish sources a limited version of such position is attributed to R. Me'ir Simaha of Dvinsk who has concluded that coercion is valid only when it brings about an internal change in the mind and heart of the person coerced, so that he assents to do what he was ostensibly forced to do. See 1 MEIR SIMHAH KAHAN, OR SAME'ACH 54-97 (1965) . Among Jewish contemporary authorities that took this line is SHAUL YISRAELI, AMUD HAYEMINI 95-96 (1966). The rule of coercion is applicable only as regards someone who wishes to fulfill the commands of the Torah. . . . But as regards those of our generation, whose non-observance derives from a lack of faith in Torah and its commands . . . the rule that a court (or its appointed delegate) should coerce them by physical means does not exist . . . for even if we subdue them physically, they will not be convinced of the truth of the mitsvah and will not agree to its observance willingly. Thus the purpose of coercion is not achieved . . . where this is certain, we are forbidden to touch a hair on their head. Id.
63. See, e.g., JOHN LOCKE, THE SECOND TREATISE OF CIVIL STATE AND A LETTER CONCERNING TOLERATION 127 (J.W. Gough ed., 1946) ("[T] rue and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force."); John Milton, A Treatise of Civil Power in Ecclesiastical Causes, in JOHN MILTON: SELECTED PROSE 296, 311 (C.A. Patrides ed., 1985) (1659) (stating that to force a ritual performance is "to compell hypocrisie, not to advance religion"). In the Jewish sources a limited version of such position is attributed to R. Me'ir Simaha of Dvinsk who has concluded that coercion is valid only when it brings about an internal change in the mind and heart of the person coerced, so that he assents to do what he was ostensibly forced to do. See 1 MEIR SIMHAH KAHAN, OR SAME'ACH 54-97 (1965) . Among Jewish contemporary authorities that took this line is SHAUL YISRAELI, AMUD HAYEMINI 95-96 (1966). The rule of coercion is applicable only as regards someone who wishes to fulfill the commands of the Torah. . . . But as regards those of our generation, whose non-observance derives from a lack of faith in Torah and its commands . . . the rule that a court (or its appointed delegate) should coerce them by physical means does not exist . . . for even if we subdue them physically, they will not be convinced of the truth of the mitsvah and will not agree to its observance willingly. Thus the purpose of coercion is not achieved . . . where this is certain, we are forbidden to touch a hair on their head. Id.
64. The linkage between religion and voluntarism was first introduced in Christian theology by Sebastian Castalion. For an analysis of his position, see KING, supra note 50, at 78-80. In Jevvish theology the idea was introduced by Moses Mendelsshon, in his book JERUSALEM, OR, ON RELIGIOUS POWER AND JUDAISM (Allen Arkush trans., 1983) (1783). For an analysis of his position, see YAAKOV KATS, BEIN YEHUDIM LEGOYIM ch. 14 (1976) (in Hebrew). Limited versions of this position can be found also in rabbinical literature. See Sagi, supra note 50, at 186-94.
65. The linkage between religion and voluntarism was first introduced in Christian theology by Sebastian Castalion. For an analysis of his position, see KING, supra note 50, at 78-80. In Jevvish theology the idea was introduced by Moses Mendelsshon, in his book JERUSALEM, OR, ON RELIGIOUS POWER AND JUDAISM (Allen Arkush trans., 1983) (1783). For an analysis of his position, see YAAKOV KATS, BEIN YEHUDIM LEGOYIM ch. 14 (1976) (in Hebrew). Limited versions of this position can be found also in rabbinical literature. See Sagi, supra note 50, at 186-94.
66. Two contemporary leading Jewish authorities that took such position are Rabbi Joseph Ber Soloveichik and Rabbi Abraham Isaac Kook. See, e.g., Shalom Carmy, Pluralism and the Category of the Ethical, 30 TRADITION 145 (1996); Tamar Ross, Between Metaphysical and Liberal Pluralism: A Second Look at Rabbi A.I. Kook's Espousal of Toleration, 21 ASS'N FOR JEWISH STUD. REV. 61 (1996).
67. Two contemporary leading Jewish authorities that took such position are Rabbi Joseph Ber Soloveichik and Rabbi Abraham Isaac Kook. See, e.g., Shalom Carmy, Pluralism and the Category of the Ethical, 30 TRADITION 145 (1996); Tamar Ross, Between Metaphysical and Liberal Pluralism: A Second Look at Rabbi A.I. Kook's Espousal of Toleration, 21 ASS'N FOR JEWISH STUD. REV. 61 (1996).
68. One may ask, if both you and Sullivan are guessing, why should one believe this argument and not that of Sullivan? Such a question misses the point, however. The proponents of excluding religion from the list of state supported values and activities bear the burden of proof. They have to establish more than probable cause. If their position is not more persuasive than mine, if neither contemporary history nor conceptual claims can support their position, I rest my case.
69. Liberalism, in THE OXFORD COMPANION TO PHILOSOPHY 484 (Ted Honderich ed., 1995).
70. It is worthwhile to emphasize that such an attempt to distinguish religion from politics is a modern secular reflection on the well-rooted Christian dichotomy between the two. Within Christianity, the political consequence of this position is the famous doctrine - dating from the patristic period and given modern formulation in Leo XIII'S Immortable Dei - of "two powers" which rule separate realms independently but which, in theory at least, sustain and assist each other, so that their relations are governed by perfect concord. See GERALD E. CASPARY, POLITICS AND EXEGESIS: ORIGEN AND THE Two SWORDS (1979); MARSILIUS OF PADUA, DEFENSOR PACIS (Alan Gewirth trans., Cambridge Univ. Press 1980) (1342); THE CHURCH SPEAKS TO THE MODERN WORLD: THE SOCIAL TEACHINGS OF LEO XIII, at 167-68 (Etienne H. Gilson ed., 1954).
71. It is worthwhile to emphasize that such an attempt to distinguish religion from politics is a modern secular reflection on the well-rooted Christian dichotomy between the two. Within Christianity, the political consequence of this position is the famous doctrine - dating from the patristic period and given modern formulation in Leo XIII'S Immortable Dei - of "two powers" which rule separate realms independently but which, in theory at least, sustain and assist each other, so that their relations are governed by perfect concord. See GERALD E. CASPARY, POLITICS AND EXEGESIS: ORIGEN AND THE Two SWORDS (1979); MARSILIUS OF PADUA, DEFENSOR PACIS (Alan Gewirth trans., Cambridge Univ. Press 1980) (1342); THE CHURCH SPEAKS TO THE MODERN WORLD: THE SOCIAL TEACHINGS OF LEO XIII, at 167-68 (Etienne H. Gilson ed., 1954).
72. It is worthwhile to emphasize that such an attempt to distinguish religion from politics is a modern secular reflection on the well-rooted Christian dichotomy between the two. Within Christianity, the political consequence of this position is the famous doctrine - dating from the patristic period and given modern formulation in Leo XIII'S Immortable Dei - of "two powers" which rule separate realms independently but which, in theory at least, sustain and assist each other, so that their relations are governed by perfect concord. See GERALD E. CASPARY, POLITICS AND EXEGESIS: ORIGEN AND THE Two SWORDS (1979); MARSILIUS OF PADUA, DEFENSOR PACIS (Alan Gewirth trans., Cambridge Univ. Press 1980) (1342); THE CHURCH SPEAKS TO THE MODERN WORLD: THE SOCIAL TEACHINGS OF LEO XIII, at 167-68 (Etienne H. Gilson ed., 1954).
73. Douglas Laycock, Religious Liberty as Liberty, 7 J. CONTEMP. LEGAL ISSUES 313, 317 (1996).
74. Robert P. George, Public Reason and Political Conflict: Abortion and Homosexuality, 106 YALE L.J. 2475, 2501 (1997).
75. This question is composed of two sub-questions: one examines whether religious arguments may serve as the foundation for political decisions; a second addresses the more far-reaching matter of whether religious arguments should be presented in public political debate. For recent works dealing with these question, see KENT GREENAWALT, PRIVATE CONSCIENCE AND PUBLIC REASONS (1995) (stating that legislators should not present religious arguments in public political debate); PERRY, supra note 12, chs. 2-3 (stating that citizens and even legislators and other public officials may present, in public political debate, religious arguments about the morality of human conduct, but that they should not rely on such arguments in making a political choice, unless, in their view a persuasive secular argument reaches the same conclusion).
76. See MAIMONIDES, TESHUVOT HA-RAMBAM 715 (J. Blau ed., 1960) (stating that, from a Jewish point of view, all human activity is subsumed under "the fear of God," and every human act ultimately results in either a Mitzvah or a transgression); David M. Smolin, Regulating Religious and Cultural Conflict in a Postmodern America: A Response to Professor Perry, 76 IOWA L. REV. 1067, 1091 (1991) ("[G]iven religion's comprehensiveness, everything is, in a sense, religious. A conception of religion that seeks to "privatize" it is itself a non-neutral interpretation of religion at variance with historic forms of Christianity, Judaism, and Islam."); see also Frederick M. Gedicks, Some Political Implications of Religious Belief, 4 NOTRE DAME J.L. ETHICS & PUB. POL'Y 419, 427-39 (1990) (arguing that religion is by its nature holistic and compelling, and therefore has political and public implications).
77. See MAIMONIDES, TESHUVOT HA-RAMBAM 715 (J. Blau ed., 1960) (stating that, from a Jewish point of view, all human activity is subsumed under "the fear of God," and every human act ultimately results in either a Mitzvah or a transgression); David M. Smolin, Regulating Religious and Cultural Conflict in a Postmodern America: A Response to Professor Perry, 76 IOWA L. REV. 1067, 1091 (1991) ("[G]iven religion's comprehensiveness, everything is, in a sense, religious. A conception of religion that seeks to "privatize" it is itself a non-neutral interpretation of religion at variance with historic forms of Christianity, Judaism, and Islam."); see also Frederick M. Gedicks, Some Political Implications of Religious Belief, 4 NOTRE DAME J.L. ETHICS & PUB. POL'Y 419, 427-39 (1990) (arguing that religion is by its nature holistic and compelling, and therefore has political and public implications).
78. See MAIMONIDES, TESHUVOT HA-RAMBAM 715 (J. Blau ed., 1960) (stating that, from a Jewish point of view, all human activity is subsumed under "the fear of God," and every human act ultimately results in either a Mitzvah or a transgression); David M. Smolin, Regulating Religious and Cultural Conflict in a Postmodern America: A Response to Professor Perry, 76 IOWA L. REV. 1067, 1091 (1991) ("[G]iven religion's comprehensiveness, everything is, in a sense, religious. A conception of religion that seeks to "privatize" it is itself a non-neutral interpretation of religion at variance with historic forms of Christianity, Judaism, and Islam."); see also Frederick M. Gedicks, Some Political Implications of Religious Belief, 4 NOTRE DAME J.L. ETHICS & PUB. POL'Y 419, 427-39 (1990) (arguing that religion is by its nature holistic and compelling, and therefore has political and public implications).
79. Andrew Koppelman accuses me of changing the subject. The state, he argues "can be vigorous in legislating morality while taking no position on religion as such." Letter from Andrew Koppelman to Gidon Sapir (Apr. 1, 1998) (on file with author). Koppelman's comment seems to support rather than refute my point. In his book, Life's Dominion, Ronald Dworkin suggests a philosophical-jurisprudential defense of Roe v. Wade and its pro-choice progeny. See RONALD DWORKIN, LIFE'S DOMINION (1993). He argues that any restriction on abortion prior to viability can be only religious, and hence prohibited by the Establishment Clause. Similarly, Michael Perry argues that no secular argument that homosexual sexual conduct is immoral is persuasive. See PERRY, supra note 12, at 85-96. Under Perry's interpretation of the Establishment Clause, it would be unconstitutional for the United States government to make a political choice against homosexuality. Both Dworkin and Perry do not argue against moralistic legislation as such. What I am trying to understand is why secular arguments could have been appropriate to decide the fierce debate over these two moral issues, but religious arguments are not.
80. The argument that neutrality is unacceptable because it does not permit the goals of religion to be achieved is very strong when advocated respecting comprehensive religions like Judaism or Islam. The public/private split of neutrality clearly does not work when faced with a comprehensive religion whose claims touch all areas of life. However, in my understanding, this argument is compelling also with respect to a non-comprehensive religion such as Christianity which, as I emphasize in the text, has strong pronouncements on morally proper human conduct in many areas of life. In fact, even Locke himself admitted a certain overlap between the religious and secular realms. Moral actions, he contended, belong "to the jurisdiction both of the . . . magistrate and conscience." LOCKE, supra note 1, at 42.
81. See 2 QUENTIN SKINNER, THE FOUNDATIONS OF MODERN POLITICAL THOUGHT 27-34 (1978).
82. Id. at 13.
83. Douglas Laycock argues that "[g]overnment-sponsored religion is theologically and liturgically thin." Laycock, supra note 26, at 380. He warns that "[i]n tolerant communities, efforts to be all-inclusive inevitably lead . . . to a secular incarnation with plastic reindeer, to Christmas and Chanukah mushed together as the Winter Holidays." Id. Michael Perry, another advocate of substantive neutrality, declares that "one way for state to corrupt religion - to co-opt it, to drain it of its prophetic potential - is to seduce religion to get in bed with government." PERRY, supra note 12, at 18; see also McCollum v. Board of Educ., 333 U.S. 203, 212 (1948) (stating that "both religion and state can best work to achieve their lofty aims if each is left free from the other within its respective sphere"); Derek H. Davis, Assessing the Proposed Religious Equality Amendment, 37 J. CHURCH & ST. 493, 508 (1995) ("Church-state separation is the great protector of true faith, not its inhibitor.").
84. Lichtenstein, supra note 28, at 394.
85. See, e.g., UTA-RENATE BLUMENTHAL, THE INVESTITURE CONTROVERSY: CHURCH AND MONARCHY FROM THE NINTH TO THE TWELFTH CENTURY (1988); RICHARD W. SOUTHERN, WESTERN SOCIETY AND THE CHURCH IN THE MIDDLE AGES (1970); GERD TELLENBACH, THE WESTERN CHURCH FROM THE TENTH TO THE EARLY TWELFTH CENTURY (1993).
86. See, e.g., UTA-RENATE BLUMENTHAL, THE INVESTITURE CONTROVERSY: CHURCH AND MONARCHY FROM THE NINTH TO THE TWELFTH CENTURY (1988); RICHARD W. SOUTHERN, WESTERN SOCIETY AND THE CHURCH IN THE MIDDLE AGES (1970); GERD TELLENBACH, THE WESTERN CHURCH FROM THE TENTH TO THE EARLY TWELFTH CENTURY (1993).
87. See, e.g., UTA-RENATE BLUMENTHAL, THE INVESTITURE CONTROVERSY: CHURCH AND MONARCHY FROM THE NINTH TO THE TWELFTH CENTURY (1988); RICHARD W. SOUTHERN, WESTERN SOCIETY AND THE CHURCH IN THE MIDDLE AGES (1970); GERD TELLENBACH, THE WESTERN CHURCH FROM THE TENTH TO THE EARLY TWELFTH CENTURY (1993).
88. Laura Underkuffler-Freund argues, in her inquiry into the historical meaning of the American nonestablishment norm, that the inclusion of this norm in the United States Constitution was mainly motivated by one major concern - "the danger of institutional merger of church and state." Underkuffler-Freund, supra note 40, at 942.
89. See Gidon Sapir, Can an Orthodox Jew Participate in Anything but a Jewish Law State?, 20 SHOFAR, AN INTERDISC. J. JEWISH STUD. (forthcoming winter 2002).
90. See Chief Rabbinate of Israel Law, 1980, 35 L.S.I. 97, (1980), regulates the functions of the Council, its composition, the election process of the council and of the two Chief Rabbis - one Ashkenazi and one Sefaradi. The formal authority of the chief rabbis and the council is limited; they do, however, partially control several issues such as licensing of marriages and divorces, kashrut (conformity with dietary law) and authorization of judges of the religious courts.
91. The religious councils are administrative bodies in each locality that provide religious services and distribute public funding for their maintenance. See Jewish Religious Services Law, 1971, 25 L.S.I. 125, (1971).
92. The Rabbinical Courts are an integral part of the state's judicial system, supported by state funds, and retain exclusive jurisdiction over matters of marriages and divorces. See Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, 7 L.S.I. 139, (1953), provides that "matters of marriage and divorce of Jews in Israel, being nationals or residents of the state, shall be under the exclusive jurisdiction of rabbinical courts" and that "marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law." Similar arrangements apply to other religious communities, including Moslem, Christian, and Druze. For more details about the jurisdiction of the various religious courts in Israel, see SHIMON SHETREET, JUSTICE IN ISRAEL: A STUDY OF THE ISRAELI JUDICIARY 106 (1994), and Andrew Treitel, Conflicting Traditions: Muslim Shari'a Courts and Marriage Age Regulation in Israel, 26 COLUM. HUM. RTS. L. REV. 402, 411-21 (1995).
93. The Rabbinical Courts are an integral part of the state's judicial system, supported by state funds, and retain exclusive jurisdiction over matters of marriages and divorces. See Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, 7 L.S.I. 139, (1953), provides that "matters of marriage and divorce of Jews in Israel, being nationals or residents of the state, shall be under the exclusive jurisdiction of rabbinical courts" and that "marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law." Similar arrangements apply to other religious communities, including Moslem, Christian, and Druze. For more details about the jurisdiction of the various religious courts in Israel, see SHIMON SHETREET, JUSTICE IN ISRAEL: A STUDY OF THE ISRAELI JUDICIARY 106 (1994), and Andrew Treitel, Conflicting Traditions: Muslim Shari'a Courts and Marriage Age Regulation in Israel, 26 COLUM. HUM. RTS. L. REV. 402, 411-21 (1995).
94. The Rabbinical Courts are an integral part of the state's judicial system, supported by state funds, and retain exclusive jurisdiction over matters of marriages and divorces. See Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, 7 L.S.I. 139, (1953), provides that "matters of marriage and divorce of Jews in Israel, being nationals or residents of the state, shall be under the exclusive jurisdiction of rabbinical courts" and that "marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law." Similar arrangements apply to other religious communities, including Moslem, Christian, and Druze. For more details about the jurisdiction of the various religious courts in Israel, see SHIMON SHETREET, JUSTICE IN ISRAEL: A STUDY OF THE ISRAELI JUDICIARY 106 (1994), and Andrew Treitel, Conflicting Traditions: Muslim Shari'a Courts and Marriage Age Regulation in Israel, 26 COLUM. HUM. RTS. L. REV. 402, 411-21 (1995).
95. CHARLES LIEBMAN & ELIEZER DON-YEHIYA, RELIGION AND POLITICS IN ISRAEL 20 (1984).
96. The most vehement critic of entangling religion and state in Israel on the ground that it corrupts religion was an orthodox scholar, Yeshayahu Leibowitz. See YESHAYAHU LEIBOWITZ, JUDAISM, HUMAN VALUES, AND THE JEWISH STATE 158-84 (1992).
97. Basic Law for the Federal Republic of Germany (1949), translated in PETER H. MERKL, THE ORIGIN OF THE WEST GERMAN REPUBLIC 213 (1963).
98. DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 412 (1994).
99. Id. at 411.
100. GERHARD ANSCHUTZ, DIE VERFASSUNG DES DEUTSCHEN REICHS 631 (4th ed. 1933), translated in CURRIE, supra note 78, at 249-50.
101. Gerald R. Dworkin, Equal Respect and the Enforcement of Morality, 7 SOC. PHIL. & POL'Y 180, 193 (1990). I find it very hard to see how this gap can be closed, given the strong counter-argument, made most eloquently by John Finnis. Finnis argues that morals legislation may manifest, not contempt, but rather a sense of the equal worth and human dignity of those people, whose conduct is outlawed precisely on the ground that it expresses a serious misconception of, and actually degrades, human worth and dignity, and thus degrades their own personal worth and dignity, along with that of others who may be induced to share in or emulate their degradation. John Finnis, Legal Enforcement of "Duties to Oneself": Kant v. Neo-Kantians, 87 COLUM. L. REV. 433, 437 (1987).
102. Gerald R. Dworkin, Equal Respect and the Enforcement of Morality, 7 SOC. PHIL. & POL'Y 180, 193 (1990). I find it very hard to see how this gap can be closed, given the strong counter-argument, made most eloquently by John Finnis. Finnis argues that morals legislation may manifest, not contempt, but rather a sense of the equal worth and human dignity of those people, whose conduct is outlawed precisely on the ground that it expresses a serious misconception of, and actually degrades, human worth and dignity, and thus degrades their own personal worth and dignity, along with that of others who may be induced to share in or emulate their degradation. John Finnis, Legal Enforcement of "Duties to Oneself": Kant v. Neo-Kantians, 87 COLUM. L. REV. 433, 437 (1987).
103. For works that can be said to fall within the camp of Political Liberalism, see ACKERMAN, supra note 7, at 11, BRIAN BARRY, JUSTICE AS IMPARTIALITY (1995), CHARLES E. LARMORE, PATTERNS OF MORAL COMPLEXITY 43 (1987) ("The ideal of neutrality can best be understood as a response to the variety of interpretations of the good life."), JOHN RAWLS, POLITICAL LIBERALISM, at xix (1993) (stating that "[political liberalism . . . has to be impartial . . . among the points of view of reasonable comprehensive doctrines"), and Thomas Nagel, Moral Conflict and Political Legitimacy, 16 PHIL. & PUB. AFF. 215, 237-40 (1987).
104. For works that can be said to fall within the camp of Political Liberalism, see ACKERMAN, supra note 7, at 11, BRIAN BARRY, JUSTICE AS IMPARTIALITY (1995), CHARLES E. LARMORE, PATTERNS OF MORAL COMPLEXITY 43 (1987) ("The ideal of neutrality can best be understood as a response to the variety of interpretations of the good life."), JOHN RAWLS, POLITICAL LIBERALISM, at xix (1993) (stating that "[political liberalism . . . has to be impartial . . . among the points of view of reasonable comprehensive doctrines"), and Thomas Nagel, Moral Conflict and Political Legitimacy, 16 PHIL. & PUB. AFF. 215, 237-40 (1987).
105. For works that can be said to fall within the camp of Political Liberalism, see ACKERMAN, supra note 7, at 11, BRIAN BARRY, JUSTICE AS IMPARTIALITY (1995), CHARLES E. LARMORE, PATTERNS OF MORAL COMPLEXITY 43 (1987) ("The ideal of neutrality can best be understood as a response to the variety of interpretations of the good life."), JOHN RAWLS, POLITICAL LIBERALISM, at xix (1993) (stating that "[political liberalism . . . has to be impartial . . . among the points of view of reasonable comprehensive doctrines"), and Thomas Nagel, Moral Conflict and Political Legitimacy, 16 PHIL. & PUB. AFF. 215, 237-40 (1987).
106. For works that can be said to fall within the camp of Political Liberalism, see ACKERMAN, supra note 7, at 11, BRIAN BARRY, JUSTICE AS IMPARTIALITY (1995), CHARLES E. LARMORE, PATTERNS OF MORAL COMPLEXITY 43 (1987) ("The ideal of neutrality can best be understood as a response to the variety of interpretations of the good life."), JOHN RAWLS, POLITICAL LIBERALISM, at xix (1993) (stating that "[political liberalism . . . has to be impartial . . . among the points of view of reasonable comprehensive doctrines"), and Thomas Nagel, Moral Conflict and Political Legitimacy, 16 PHIL. & PUB. AFF. 215, 237-40 (1987).
107. RAWLS, supra note 82, at xx.
108. Id. at 134.
109. See JOHN RAWLS, A THEORY OF JUSTICE 11-12 (1971).
110. See Frank I. Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Frank I. Michelman, The Supreme Court, 1985 Term - Forward: Traces of Self-Government, 100 HARV. L. REV. 4 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689 (1984).
111. See Frank I. Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Frank I. Michelman, The Supreme Court, 1985 Term - Forward: Traces of Self-Government, 100 HARV. L. REV. 4 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689 (1984).
112. See Frank I. Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Frank I. Michelman, The Supreme Court, 1985 Term - Forward: Traces of Self-Government, 100 HARV. L. REV. 4 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689 (1984).
113. See Frank I. Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Frank I. Michelman, The Supreme Court, 1985 Term - Forward: Traces of Self-Government, 100 HARV. L. REV. 4 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689 (1984).
114. See ALASDAIR C. MACINTYRE, AFTER VIRTUE (2d ed. 1984) [hereinafter MACINTYRE, AFTER VIRTUE]; ALASDAIR C. MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? (1988); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); Michael J. Sandel, Political Liberalism, 107 HARV. L. REV. 1765 (1994) (book review).
115. See ALASDAIR C. MACINTYRE, AFTER VIRTUE (2d ed. 1984) [hereinafter MACINTYRE, AFTER VIRTUE]; ALASDAIR C. MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? (1988); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); Michael J. Sandel, Political Liberalism, 107 HARV. L. REV. 1765 (1994) (book review).
116. See ALASDAIR C. MACINTYRE, AFTER VIRTUE (2d ed. 1984) [hereinafter MACINTYRE, AFTER VIRTUE]; ALASDAIR C. MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? (1988); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); Michael J. Sandel, Political Liberalism, 107 HARV. L. REV. 1765 (1994) (book review).
117. See ALASDAIR C. MACINTYRE, AFTER VIRTUE (2d ed. 1984) [hereinafter MACINTYRE, AFTER VIRTUE]; ALASDAIR C. MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? (1988); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); Michael J. Sandel, Political Liberalism, 107 HARV. L. REV. 1765 (1994) (book review).
118. Stephen A. Gardbaum, Why the Liberal State Can Promote Moral Ideals After All, 104 HARV. L. REV. 1350, 1352 (1991). Gardbaum himself is not a Communitarian but rather a Perfectionist Liberal.
119. Larry Alexander, Liberalism, Religion, and the Unity of Epistemobgy, 30 SAN DIEGO L. REV. 763, 764 (1993).
120. Stephen A. Gardbaum, Liberalism, Autonomy, and Moral Conflict, 48 STAN. L. REV. 385, 389 (1996).
121. I take "perfectionism" to be defined as the general claim that the state is "duty bound to promote the good life." RAZ, supra note 8, at 426.
122. For works that can be said to fall within the ranks of Perfectionist Liberalism, see WILLIAM A. GALSTON, LIBERAL PURPOSES: GOODS, VIRTUES, AND DIVERSITY IN THE LIBERAL STATE (1991), and RAZ, supra note 8.
123. Gardbaum, supra note 90, at 389.
124. Id. at 386. Gerald Dworkin and Joseph Raz are among the liberals who have urged the promotion of autonomy. See GERALD DWORKIN, THE THEORY AND PRACTICE OF AUTONOMY 29-33 (1988); RAZ, supra note 8, at 133, 424-29.
125. See RAWLS, supra note 85, at 201-05.
126. JOHN GRAY, LIBERALISM 61 (1986).
127. Id. at 60.
128. See Gardbaum, supra note 90, at 400.
129. GEORGE SHER, BEYOND NEUTRALITY 64 (1997).
130. Id.
131. RAZ, supra note 8, at 374-75.
132. Id. at 378.
133. There is a gap between arguing that autonomy requires a range of options and the conclusion that states should provide such a range. Raz, who is a Perfectionist Liberal, fills the gap by claiming that states have an obligation to promote the good. See id.
134. See CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY 44 (1987); Will Kymlicka, Liberal Individualism and Liberal Neutrality, 99 ETHICS 884 (1989) (defining these two interpretations of neutrality as consequential versus justificatory neutrality); John Rawls, The Priority of Right and Ideas of the Good, 17 PHIL. & PUB. AFF. 262 (1988); Jeremy Waldron, Autonomy and Perfectionism in Raz's Morality of Freedom, 62 S. CAL. L. REV. 1097, 1133 [hereinafter Waldron, Autonomy and Perfectionism]; Jeremy Waldron, Legislation and Moral Neutrality, in LIBERAL NEUTRALITY 61, 66-68 (Robert E. Goodin & Andrew Reeve eds., 1989).
135. See CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY 44 (1987); Will Kymlicka, Liberal Individualism and Liberal Neutrality, 99 ETHICS 884 (1989) (defining these two interpretations of neutrality as consequential versus justificatory neutrality); John Rawls, The Priority of Right and Ideas of the Good, 17 PHIL. & PUB. AFF. 262 (1988); Jeremy Waldron, Autonomy and Perfectionism in Raz's Morality of Freedom, 62 S. CAL. L. REV. 1097, 1133 [hereinafter Waldron, Autonomy and Perfectionism]; Jeremy Waldron, Legislation and Moral Neutrality, in LIBERAL NEUTRALITY 61, 66-68 (Robert E. Goodin & Andrew Reeve eds., 1989).
136. See CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY 44 (1987); Will Kymlicka, Liberal Individualism and Liberal Neutrality, 99 ETHICS 884 (1989) (defining these two interpretations of neutrality as consequential versus justificatory neutrality); John Rawls, The Priority of Right and Ideas of the Good, 17 PHIL. & PUB. AFF. 262 (1988); Jeremy Waldron, Autonomy and Perfectionism in Raz's Morality of Freedom, 62 S. CAL. L. REV. 1097, 1133 [hereinafter Waldron, Autonomy and Perfectionism]; Jeremy Waldron, Legislation and Moral Neutrality, in LIBERAL NEUTRALITY 61, 66-68 (Robert E. Goodin & Andrew Reeve eds., 1989).
137. See CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY 44 (1987); Will Kymlicka, Liberal Individualism and Liberal Neutrality, 99 ETHICS 884 (1989) (defining these two interpretations of neutrality as consequential versus justificatory neutrality); John Rawls, The Priority of Right and Ideas of the Good, 17 PHIL. & PUB. AFF. 262 (1988); Jeremy Waldron, Autonomy and Perfectionism in Raz's Morality of Freedom, 62 S. CAL. L. REV. 1097, 1133 [hereinafter Waldron, Autonomy and Perfectionism]; Jeremy Waldron, Legislation and Moral Neutrality, in LIBERAL NEUTRALITY 61, 66-68 (Robert E. Goodin & Andrew Reeve eds., 1989).
138. See CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY 44 (1987); Will Kymlicka, Liberal Individualism and Liberal Neutrality, 99 ETHICS 884 (1989) (defining these two interpretations of neutrality as consequential versus justificatory neutrality); John Rawls, The Priority of Right and Ideas of the Good, 17 PHIL. & PUB. AFF. 262 (1988); Jeremy Waldron, Autonomy and Perfectionism in Raz's Morality of Freedom, 62 S. CAL. L. REV. 1097, 1133 [hereinafter Waldron, Autonomy and Perfectionism]; Jeremy Waldron, Legislation and Moral Neutrality, in LIBERAL NEUTRALITY 61, 66-68 (Robert E. Goodin & Andrew Reeve eds., 1989).
139. See SHER, supra note 99, at 25-27.
140. RAZ, supra note 8, at 418.
141. Id.
142. As a matter of fact, Raz holds that the perfectionist selection should be made independently from and prior to the selection forced by the problem of limited resources. He holds that a state should first distinguish between valuable options that may get support and morally repugnant options that should not be supported because "the availability of such options is not a requirement of respect for autonomy." Id. at 381. Only then should the state select the more valuable option among the valuable options.
143. Waldron, Autonomy and Perfectionism, supra note 104, at 1151.
144. See Joseph Raz, Facing Up: A Reply, 62 S. CAL. L. REV. 1153, 1234 (1989).
145. Gardbaum has correctly observed that the United States Supreme Court has recognized the distinction between some choices based on how fundamental they are as a central part of its privacy jurisprudence. See Gardbaum, supra note 90, at 399. He cites cases such as Eisenstadt v. Baird, 405 U.S. 438, 454 (1972) (privileging "decisions so fundamentally affecting a person as the decision whether to bear or beget a child"), Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (protecting the right of parents "to direct the upbringing and education of children under their control"), and Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (defining liberty to include the right to choose an occupation to "acquire useful knowledge," to many, and to raise children). Gardbaum is, however, twice mistaken. First, the Court entrenched several issues which it deemed to involve 'fundamental choice,' but it did it so arbitrarily, so that one really wonders whether we do not have here another type of authoritative decision making. For example, in Bowers v. Hardwick, 478 U.S. 183 (1986), the Court rejected the fundamental choice argument when applied to sexual orientation. See id. at 191 (holding that a law criminalizing homosexual sodomy does not violate the right to privacy created by the due process clause of the 14th Amendment). It is unclear what makes this choice, according to the Court, less fundamental then the other choices which were recognized. Second, whereas our question is which choices the state should not authoritatively influence, all of the cited cases discussed prohibitions on state coercion.
146. See MAX WEBER, ECONOMY AND SOCIETY 56, 65 (1968).
147. JOHN STUART MILL, ON LIBERTY 13 (1956).
148. Raz, supra note 110, at 1215.
149. Id. at 1215.
150. RAZ, supra note 8, at 308.
151. There is, however, one weakness in Raz's reasoning: Raz's endorsement of
152. As Raz correctly observes, there are cases where individuals enjoy a formal freedom to pursue a goal of their choice, but they would be nonetheless considered completely non-autonomous. For example, "autonomy cannot be achieved by a person whose every action and thought must be bent to the task of survival, a person who will die if ever he puts a foot wrong" nor can it be obtained "by a person who is constantly fighting for moral survival" such as a person who needs to commit murder for each option he rejects. RAZ, supra note 8, at 379-80.
153. As Kent Greenawalt correctly argues, "condemnation of the views of a minority, say by a public display that portrays a faith as primitive or degrading, will send the forbidden (exclusionary) message even more directly than the more benign endorsement of the majority's position." Kent Greenawalt, Religious Law and Civil Law: Using Secular Law to Assure Observance of Practices with Religious Significance, 71 S. CAL. L. REV. 781, 826 (1998).
154. See, e.g., Suzanna Sherry, Lee v. Weisman: Paradox Redux, 1992 SUP. CT. REV. 123, 139; Sullivan, supra note 16, at 197. It should be noted, however, that the current United States Supreme Court does not accept this logic. The Court recently ruled that there is no Free Exercise claim unless an individual is required to violate a specific and obligatory tenet of his religious belief. See Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 391-92 (1990); Laycock, supra note 26, at 377.
155. There are two versions of the slippery slope argument, logical and empirical. Here I use the concept in its empirical version. The argument is that although A and B are rationally different, and thus permitting A does not logically require permitting B, nonetheless, empirically, the result of permitting A would be the allowance of B. But see Frederick Schauer, Slippery Slopes, 99 HARV. L. REV. 361 (1985) (arguing that slippery slope arguments are always necessarily empirical). For a slippery slope argument with respect to the moral status of euthanasia, see B. Williams, Which Slopes are Slippery?, in MORAL DILEMMAS IN MODERN MEDICINE 126 (Michael Lockwood ed., 1985).
156. There are two versions of the slippery slope argument, logical and empirical. Here I use the concept in its empirical version. The argument is that although A and B are rationally different, and thus permitting A does not logically require permitting B, nonetheless, empirically, the result of permitting A would be the allowance of B. But see Frederick Schauer, Slippery Slopes, 99 HARV. L. REV. 361 (1985) (arguing that slippery slope arguments are always necessarily empirical). For a slippery slope argument with respect to the moral status of euthanasia, see B. Williams, Which Slopes are Slippery?, in MORAL DILEMMAS IN MODERN MEDICINE 126 (Michael Lockwood ed., 1985).
157. Laycock, supra note 59, at 321.
158. Id. Laycock illustrates this point by the allegedly unsuccessful struggle of Justice Kennedy to articulate a coherent coercion standard, pointing to Kennedy's positions in Lee v. Weisman, 505 U.S. 577, 593-99 (1992), and Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 660-61 (1989).
159. See supra text accompanying notes 41-57.
160. Smolin contends that the same applies to the pre-nonestablishment era in the United States. See Smolin, supra note 62, at 1093 ("Religious conflict has not generally threatened the temporal peace in America, despite the fact that colonies and states exercised de jure and de facto establishment of religion from the colonial era until World War II").
161. See Laycock, supra note 59, at 321; see also Steven G. Gey, Religious Coercion and the Nonestablishment Clause, 1994 U. ILL. L. REV. 463, 492 ("[T]he term coercion is open to a wide range of definitions, each leading to very different results.").
162. Lee, 505 U.S. at 636 (Scalia, J., dissenting) ("[I]nterior decorating is a rock-hard science compared to psychology practiced by amateurs.").
163. Proponents of formal neutrality claim that it is an easy test to apply. See Mark Tushnet, Of Church and State and the Supreme Court: Kurland Revisited, 1989 SUP. CT. REV. 373, 400 (stating that formal neutrality would be a "rigid and easily applied test"). This, however, is not true, as McConnell clearly illustrates. See Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685, 738 (1992). It is not always easy to tell whether a given law is religiously neutral. . . . [W]ould it be formally neutral for the State to deny unemployment benefits to persons unemployed for reasons of religious conviction, when others are given benefits for unemployment caused or prolonged by some (but not all) nonreligious personal factors, such as inappropriateness of the work or distance from home? Id.
164. Proponents of formal neutrality claim that it is an easy test to apply. See Mark Tushnet, Of Church and State and the Supreme Court: Kurland Revisited, 1989 SUP. CT. REV. 373, 400 (stating that formal neutrality would be a "rigid and easily applied test"). This, however, is not true, as McConnell clearly illustrates. See Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685, 738 (1992). It is not always easy to tell whether a given law is religiously neutral. . . . [W]ould it be formally neutral for the State to deny unemployment benefits to persons unemployed for reasons of religious conviction, when others are given benefits for unemployment caused or prolonged by some (but not all) nonreligious personal factors, such as inappropriateness of the work or distance from home? Id.
165. I believe that those who describe reality that way unnecessarily load the atmosphere and complicate the situation.
166. Smolin, supra note 62, at 1096.
167. RAZ, supra note 8, at 371.
168. Not all authorities accept this interpretation of the United States Constitution, however. Many American constitutional scholars deny that the United States Constitution gives special protection to religious liberty. See, e.g., STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM (1995) (stating that the religious clauses are only about federalism and are incoherent if applied to religious liberty); William P. Marshall, Religion as Ideas: Religion as Identity, 7 J. CONTEMP. LEGAL ISSUES 385, 392-404 (1996) (arguing that the Free Exercise Clause is just a special case of the Free Speech Clause); Underkuffler-Freund, supra note 40, at 961 (stating that constitutional doctrine regarding religious freedom should be reoriented to "focus . . . on the protection of individual conscience").
169. Not all authorities accept this interpretation of the United States Constitution, however. Many American constitutional scholars deny that the United States Constitution gives special protection to religious liberty. See, e.g., STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM (1995) (stating that the religious clauses are only about federalism and are incoherent if applied to religious liberty); William P. Marshall, Religion as Ideas: Religion as Identity, 7 J. CONTEMP. LEGAL ISSUES 385, 392-404 (1996) (arguing that the Free Exercise Clause is just a special case of the Free Speech Clause); Underkuffler-Freund, supra note 40, at 961 (stating that constitutional doctrine regarding religious freedom should be reoriented to "focus . . . on the protection of individual conscience").
170. One may even further argue that the requirement that the state accommodate religious exercise should not be construed merely to cases of state-imposed impediments but should include also certain impediments imposed by private actors, such as employers. See Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 SUP. CT. REV. 323, 385-86.
171. I am not an expert of Enlightenment philosophy. Therefore, the following presentation of the so-called Enlightenment rationale, including the reference to the works of John Locke, is partially based on McConnell's presentation of this rationale. See McConnell, supra note 14, at 1498-99. The most important work in this field is ERNST CASSIRER, THE PHILOSOPHY OF THE ENLIGHTENMENT (Fritz C. Koelln & James P. Pettegrove trans., 1957) (1932).
172. JOHN LOCKE, A THIRD LETTER FOR TOLERATION (1692), in 6 THE WORKS OF JOHN LOCKE 143 (1963). The origins of this dichotomy between these two types of human knowledge, the one based upon human power to reason and the other based on faith, can be traced to Thomas Aquinas's Summa Theologica. See THOMAS AQUINAS, SUMMA THEOLOGICA (Pietro Caramello ed., Benziger Bros. 1947) (1485).
173. JOHN LOCKE, A THIRD LETTER FOR TOLERATION (1692), in 6 THE WORKS OF JOHN LOCKE 143 (1963). The origins of this dichotomy between these two types of human knowledge, the one based upon human power to reason and the other based on faith, can be traced to Thomas Aquinas's Summa Theologica. See THOMAS AQUINAS, SUMMA THEOLOGICA (Pietro Caramello ed., Benziger Bros. 1947) (1485).
174. JOHN LOCKE, A THIRD LETTER FOR TOLERATION (1692), in 6 THE WORKS OF JOHN LOCKE 143 (1963). The origins of this dichotomy between these two types of human knowledge, the one based upon human power to reason and the other based on faith, can be traced to Thomas Aquinas's Summa Theologica. See THOMAS AQUINAS, SUMMA THEOLOGICA (Pietro Caramello ed., Benziger Bros. 1947) (1485).
175. McConnell, supra note 14, at 1498. McConnell here refers to Locke's Second Treatise of State. See JOHN LOCKE, THE SECOND TREATISE OF STATE §§ 87-89 (1690), reprinted in TWO TREATISES OF GOVERNMENT 366-69 (P. Laslett rev. ed., 1963).
176. McConnell, supra note 14, at 1498. McConnell here refers to Locke's Second Treatise of State. See JOHN LOCKE, THE SECOND TREATISE OF STATE §§ 87-89 (1690), reprinted in TWO TREATISES OF GOVERNMENT 366-69 (P. Laslett rev. ed., 1963).
177. See supra text accompanying notes 63 & 70.
178. James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in 2 THE WRITINGS OF JAMES MADISON 183, 187 (Gaillard Hunt ed., 1901).
179. James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in 2 THE WRITINGS OF JAMES MADISON 183, 187 (Gaillard Hunt ed., 1901).
180. Enlightenment era thinkers may not have had in mind such liberal religions, so the seeming failure of their rationale to justify granting freedom of religion to these streams can not be counted against them. Contemporary thinkers, who face liberal religions, must, however, meet the challenge presented in the text.
181. See supra text accompanying notes 47-49.
182. John Rawls, The Idea of an Overlapping Consensus, 7 OXFORD J. LEGAL STUD. 1, 4 (1987).
183. ACKERMAN, supra note 7, at 11.
184. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 77-90 (1962); KARL R. POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY (1959).
185. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 77-90 (1962); KARL R. POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY (1959).
186. John Rawls, Kantian Constructivism in Moral Theory, 77 J. PHIL. 515, 544 (1980); see also WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 81 (1995); Ronald Dworkin, In Defense of Equality, 1 SOC. PHIL. & POL'Y 1, 24-40 (1983).
187. John Rawls, Kantian Constructivism in Moral Theory, 77 J. PHIL. 515, 544 (1980); see also WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 81 (1995); Ronald Dworkin, In Defense of Equality, 1 SOC. PHIL. & POL'Y 1, 24-40 (1983).
188. John Rawls, Kantian Constructivism in Moral Theory, 77 J. PHIL. 515, 544 (1980); see also WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 81 (1995); Ronald Dworkin, In Defense of Equality, 1 SOC. PHIL. & POL'Y 1, 24-40 (1983).
189. See, e.g., MICHAEL J. SANDEL, INTRODUCTION TO LIBERALISM AND ITS CRITICS 5 (1984).
190. See generally Stephen A. Gardbaum, Law, Politics, and the Claims of Community, 90 MICH. L. REV. 685 (1992).
191. KYMLICKA, supra note 144, at 126.
192. CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 89 (1973).
193. RONALD DWORKIN, A MATTER OF PRINCIPLE 228 (1985).
194. KYMLICKA, supra note 144, at 84.
195. Id. at 84. Kymlicka cites several scholars who make that argument. See id. at 84 n.12. In the text, he quotes mainly Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. MICH. J. LAW REFORM 751, 762 (1992).
196. KYMLICKA, supra note 144, at 85-86.
197. Id. at 86.
198. See id. at 107-30.
199. Id. at 76.
200. Id. at 93.
201. See id. at 105.
202. Waldron, supra note 151, at 762.
203. Avishai Margalit & Moshe Halbertal, Liberalism and the Right to Culture, 61 SOC. RES. 491, 498 (1994); see also Avishai Margalit & Moshe Halbertal, Response to Amelie Oksenberg Rorty, 62 SOC. RES. 171, 171-73 (1995); Avishai Margalit & Joseph Raz, National Self-Determination, 87 J. PHIL. 439, 442-47 (1990).
204. Avishai Margalit & Moshe Halbertal, Liberalism and the Right to Culture, 61 SOC. RES. 491, 498 (1994); see also Avishai Margalit & Moshe Halbertal, Response to Amelie Oksenberg Rorty, 62 SOC. RES. 171, 171-73 (1995); Avishai Margalit & Joseph Raz, National Self-Determination, 87 J. PHIL. 439, 442-47 (1990).
205. Avishai Margalit & Moshe Halbertal, Liberalism and the Right to Culture, 61 SOC. RES. 491, 498 (1994); see also Avishai Margalit & Moshe Halbertal, Response to Amelie Oksenberg Rorty, 62 SOC. RES. 171, 171-73 (1995); Avishai Margalit & Joseph Raz, National Self-Determination, 87 J. PHIL. 439, 442-47 (1990).
206. In childhood such integration is possible. As Andrew Koppelman pointed out to me, kidnappings of Jewish children have sometimes occurred, and the kidnappers . . . have sometimes succeeded in raising the children as sincere Christians. In such cases and similar ones one cannot say that these children were harmed because they do not have a culture. They do have a culture; the culture is just a different one than that of their parents. Letter from Andrew Koppelman to Gidon Sapir (Apr. 1, 1998) (copy on file with author).
207. Supporters of cultural rights often support their case with another argument. They claim that "societal diversity enhances the quality of life, by enriching our experience, expanding cultural resources." Richard Falk, The Rights of Peoples (in Particular Indigenous Peoples), in THE RIGHTS OF PEOPLES 17, 23 (James Crawford ed., 1988); see also KYMLICKA, supra note 144, at 121-23; BRIAN SCHWARTZ, FIRST PRINCIPLES, SECOND THOUGHTS: ABORIGINAL PEOPLES, CONSTITUTIONAL REFORM AND CANADIAN STATECRAFT 1-86 (1986). Indeed, if, as we claimed in Section II, autonomy means the ability to choose between a variety of valuable options, then maintaining a diversity of cultures should be considered an advantage. It should be noted that this argument for cultural diversity has its counterparts in arguments in favor of federalism. See, e.g., Steven Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995).
208. Supporters of cultural rights often support their case with another argument. They claim that "societal diversity enhances the quality of life, by enriching our experience, expanding cultural resources." Richard Falk, The Rights of Peoples (in Particular Indigenous Peoples), in THE RIGHTS OF PEOPLES 17, 23 (James Crawford ed., 1988); see also KYMLICKA, supra note 144, at 121-23; BRIAN SCHWARTZ, FIRST PRINCIPLES, SECOND THOUGHTS: ABORIGINAL PEOPLES, CONSTITUTIONAL REFORM AND CANADIAN STATECRAFT 1-86 (1986). Indeed, if, as we claimed in Section II, autonomy means the ability to choose between a variety of valuable options, then maintaining a diversity of cultures should be considered an advantage. It should be noted that this argument for cultural diversity has its counterparts in arguments in favor of federalism. See, e.g., Steven Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995).
209. Supporters of cultural rights often support their case with another argument. They claim that "societal diversity enhances the quality of life, by enriching our experience, expanding cultural resources." Richard Falk, The Rights of Peoples (in Particular Indigenous Peoples), in THE RIGHTS OF PEOPLES 17, 23 (James Crawford ed., 1988); see also KYMLICKA, supra note 144, at 121-23; BRIAN SCHWARTZ, FIRST PRINCIPLES, SECOND THOUGHTS: ABORIGINAL PEOPLES, CONSTITUTIONAL REFORM AND CANADIAN STATECRAFT 1-86 (1986). Indeed, if, as we claimed in Section II, autonomy means the ability to choose between a variety of valuable options, then maintaining a diversity of cultures should be considered an advantage. It should be noted that this argument for cultural diversity has its counterparts in arguments in favor of federalism. See, e.g., Steven Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995).
210. See International Covenant of Civil and Political Rights, Dec. 16, 1966, art. 27, 999 U.N.T.S. 171.
211. The position that requires states to abandon the benign neglect stance and take positive measures to protect minority cultures was clearly adopted in several recent international documents dealing with minority rights. See, e.g., Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, in UNIVERSAL MINORITY RIGHTS 159, 161 (Alan Phillips & Allan Rosas eds., 1995) ("States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories, and shall encourage conditions for the promotion of that identity."); Selected OSCE Documents and Provisions: Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, in UNIVERSAL MINORITY RIGHTS 351, 352 (obliging member states to "protect the ethnic, cultural, linguistic and religious identity of national minorities on their territories and create conditions for the promotion of that identity").
212. The position that requires states to abandon the benign neglect stance and take positive measures to protect minority cultures was clearly adopted in several recent international documents dealing with minority rights. See, e.g., Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, in UNIVERSAL MINORITY RIGHTS 159, 161 (Alan Phillips & Allan Rosas eds., 1995) ("States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories, and shall encourage conditions for the promotion of that identity."); Selected OSCE Documents and Provisions: Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, in UNIVERSAL MINORITY RIGHTS 351, 352 (obliging member states to "protect the ethnic, cultural, linguistic and religious identity of national minorities on their territories and create conditions for the promotion of that identity").
213. See Kymlicka, supra note 144, at 108. Loyal to his narrow definition of culture, Kymlicka uses "language" as the paradigmatic cultural material and as an illustration for the sort of distinctive cultural features that will disappear absent governmental support. However, the more encompassing the minority culture is, the more distinctive cultural materials it would strive to preserve. This is a truth that some Western thinkers, who live in a cosmopolitan culture, fail to appreciate.
214. Lawrence M. Friedman, The War of the Worlds: A Few Comments on Law, Culture, and Rights, 47 CASE W. RES. L. REV. 379, 381 (1997).
215. KYMLICKA, supra note 144, at 111.
216. Somewhat surprisingly, advocates of minority rights do not universally accept this simple reference. Kymlicka, for example, holds that there is no analogy between religion and culture. He contends that "[i]t is quite possible for a state not to have an established church. But the state cannot help but give at least partial establishment to a culture . . . ." Id. It seems that Kymlicka, much like many other political philosophers, does not succeed in understanding that religions play on the same courtyard as other cultures. He does not understand, for example, that when the state takes Sunday as the Sabbath, it prefers Christian culture over Jewish or Muslim cultures, or that when the state replaces, according to his suggestion, "religious oaths in courts with secular oaths," it prefers secular culture over religious culture. Id.
217. George C. Freeman, III, The Search for the Constitutional Definition of Religion, 71 GEO. L.J. 1519, 1565 (1983).
218. Anita Bowser, Delimiting Religion in the Constitution: A Classification Problem, 11 VAL. U. L. REV. 163, 164 (1977) ("A judge cannot appeal to the canons of logic to decide whether a given classification is the necessary or the correct one. Because classification cannot be carried on deductively the task is inherently arbitrary one.").
219. Developments in the Law - Religion and the State, 100 HARV. L. REV. 1606, 1631 (1987) [hereinafter Developments]. 171 Lupu, supra note 17, at 358.
220. Developments, supra note 170, at 1631.
221. See Sharon L. Worthing, "Religion" and "Religious Institutions" Under the First Amendment, 7 PEPP. L. REV. 313, 345-46 (1980) ("If governmemt can define what is a 'church,' it can also define what is not a church, and can do so in a manner which excludes religions which are not favored by government officials. The very existence of such a power would be unconstitutional under the establishment clause.").
222. See Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989).
223. Id. at 585.
224. Id. at 587 n.34.
225. Id. at 616.
226. Id. at 617. In a later footnote, Justice Blackmun apparently presented a slightly different opinion, by asserting that "the menorah retains its religious significance even in this display." Id. at 619 n.68.
227. Id. at 616.
228. Id. at 641.
229. Id. at 645.
230. See id. at 633. Justice O'Connor admitted that Chanukah has certain secular aspects. She, nonetheless, disagreed widi Justice Blackmun because she found it to be still predominantly a religious holiday with the menorah as its central religious symbol and ritual object. Justice O'Connor, therefore, does not deny the possibility that a religiously-rooted holiday or symbol may become secular; nor does she deny the ability and duty of the court to examine this possibility.
231. Id. at 633.
232. Id. at 635.
233. Id. at 678.
234. In the formative years of the United States when Thanksgiving was first proclaimed, the answer to this question would have probably been different from the present one. See Underkuffler-Freund, supra note 40, at 952 ("In his presidential years, Madison issued Thanksgiving Day proclamations . . . . He later wrote almost apologetically of his yielding on this issue . . . . He acknowledged that these proclamations deviated from his principles of separation of church and state . . . .").
235. For example, in order to determine whether civil involvement - either judicial or legislative - in the granting of a get (a bill of divorce required by Jewish law to dissolve a marriage) is constitutionally permissible in the United States, one crucial question would be whether granting a get is a secular or religious matter. See Lawrence Marshall, The Religion Clauses and Compelled Religious Divorces: A Study in Marital and Constitutional Separations, 80 NW. U. L. REV. 204, 219 (1985). Marshall concludes that the get procedure is religious, according to a test that asks whether it has "any rational justification other than the significance that some religion puts on it." Id.
236. As Justice Blackmun observed, The Chanukah story always has had a political or national, as well as religious, dimension: it tells of national heroism in addition to divine intervention. Also, Chanukah, like Christmas, is a winter holiday . . . . Just as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity, and "as a cultural or national event, rather than as a specifically religious event." Allegheny, 492 U.S. at 585 (citing Appellant's Brief at 143).
237. As Allegheny illustrates, Chanukah is acknowledged in some localities. See id. It gets even a greater recognition in commercial advertisements. It is also common among some members of the faculty at Northwestern to offer students the option of canceling classes on Yom Kippur and making it up on another day.
238. Similar, and probably even stronger, feelings of alienation will be felt by atheist people from Moslem origins residing in the United States. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657 (1997).
239. 406 U.S. 205 (1972).
240. Indeed the Court argued that the state's action "carries with it a very real threat of undermining the . . . community and religious practices as they exist today." Id. at 218 (emphasis added). For a similar interpretation of that case, see KYMLICKA, supra note 144, at 162.
241. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).
242. Employment Div. v. Smith, 494 U.S. 872 (1990).
243. Lyng, 485 U.S. at 450.
244. Robert C. Ward, The Spirits Will Leave: Preventing the Desecration and Destruction of Native American Sacred Sites on Federal Land, 19 ECOLOGY L.Q. 795, 799 (1992).
245. Robert S. Michaelsen, American Indian Religious Freedom Litigation: Promise and Perils, 3 J.L. & RELIGION 47, 49 (1985).
246. D. THEODORATUS, U.S. DEPT. OF AGRIC., ON CULTURAL RESOURCES OF THE CHIMNEY ROCK SECTION, GASQUEST-ORLEANS ROAD, SIX RIVERS NATIONAL FOREST 44 (1979).
247. McConnell, supra note 14, at 1497.
248. It should be noted that McConnell indeed presented this argument in the context of a historical analysis of the rationale behind the American free-exercise norm, which was framed by people whose "belief in the existence of God was natural and nearly universal." Id. at 1498. His originalist inquiry makes sense, but does not provide a convincing rationale for contemporary evaluation that is not committed to past presumptions.
249. Moreover, dividing the source of behavior to religious-transcendent and secular-immanent ones clearly overlooks other possibilities. Denying the authority of a god does not make a person a positivist, since one can still accept secular natural law as the source of his behavior.
250. Sandel, for example, links freedom of religion and freedom of conscience while asserting that "[i]t is precisely because belief is not governed by the will that freedom of conscience is unalienable." Michael J. Sandel, Freedom of Conscience or Freedom of Choice, in ARTICLES OF FAITH, ARTICLES OF PEACE 74, 88 (James Davison Hunter & Os Guinness eds., 1990). One does not have to be a communitarian, like Sandel, in order to make that statement. Liberalism is not necessarily about denying the existence of moral obligations derived from sources other than the self.
251. Laycock, supra note 59, at 336.
252. Lupu, supra note 17, at 359.
253. See generally STEPHEN CARTER, THE CULTURE OF DISBELIEF: How AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION (1993) (providing an eloquent presentation of this argument).
254. Id. at 36.
255. Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. CHI. L. REV. 1245, 1265 (1994).
256. CARTER, supra note 205, at 37.
257. Sullivan, supra note 16, at 219.
258. Maimon Schwarzschild, Religion and Public Debate in a Liberal Society: Always Oil and Water or Sometimes More Like Rum and Coca-Cola?, 30 SAN DIEGO L. REV. 903, 911 (1993).
259. Maimon Schwarzschild, Pluralist Interpretation: From Religion to the First Amendment, 7 J. CONTEMP. LEGAL ISSUES 447, 468 (1996).
260. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213-215 (1972); see also id. at 220 ("A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion.").
261. See Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (holding that the Free Exercise Clause provides no protection against a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [Smith's] religion prescribes (or proscribes)"); see also Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1120 (1990) ("The compelling interest test has been applied numerous times since Yoder. The Court reiterated the compelling interest test no fewer than three times in the year preceding Smith, including in two unanimous opinions."); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, 158 (1997) [hereinafter McConnell, Institutions and Interpretations] ("Prior to Smith, the freedom-protective interpretation was a firmly established (albeit haphazardly enforced) doctrine of constitutional law."). It should be noted, however, that there are those who deny that the Rehnquist Court departed in Smith from previous rulings and claim that Yoder is the only occasion on which the accommodation position has prevailed in any Supreme Court setting. See Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L. REV. 437, 446 (1994).
262. See Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (holding that the Free Exercise Clause provides no protection against a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [Smith's] religion prescribes (or proscribes)"); see also Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1120 (1990) ("The compelling interest test has been applied numerous times since Yoder. The Court reiterated the compelling interest test no fewer than three times in the year preceding Smith, including in two unanimous opinions."); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, 158 (1997) [hereinafter McConnell, Institutions and Interpretations] ("Prior to Smith, the freedom-protective interpretation was a firmly established (albeit haphazardly enforced) doctrine of constitutional law."). It should be noted, however, that there are those who deny that the Rehnquist Court departed in Smith from previous rulings and claim that Yoder is the only occasion on which the accommodation position has prevailed in any Supreme Court setting. See Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L. REV. 437, 446 (1994).
263. See Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (holding that the Free Exercise Clause provides no protection against a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [Smith's] religion prescribes (or proscribes)"); see also Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1120 (1990) ("The compelling interest test has been applied numerous times since Yoder. The Court reiterated the compelling interest test no fewer than three times in the year preceding Smith, including in two unanimous opinions."); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, 158 (1997) [hereinafter McConnell, Institutions and Interpretations] ("Prior to Smith, the freedom-protective interpretation was a firmly established (albeit haphazardly enforced) doctrine of constitutional law."). It should be noted, however, that there are those who deny that the Rehnquist Court departed in Smith from previous rulings and claim that Yoder is the only occasion on which the accommodation position has prevailed in any Supreme Court setting. See Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L. REV. 437, 446 (1994).
264. See, e.g., City of Boerne v. Flores, 521 U.S. 506, 536-37 (1997) (Stevens, J., concurring); Eisgruber & Sager, supra note 207, at 1266-70; William P. Marshall, The Religious Freedom Restoration Act: Establishment, Equal Protection, and Free Speech Concerns, 56 MONT. L. REV. 227, 237-42 (1995); Sherry, supra note 120, at 136-50.
265. See, e.g., PERRY, supra note 12, at 29 ("[I]t might be ideal if the constitutional law of the United States were revised to protect acts of secular conscience on a par with acts of religious conscience."); Rodney K. Smith, Conscience, Coercion and the Establishment of Religion: The Beginning of an End to the Wandering of a Wayward Judiciary?, 43 CASE W. RES. L. REV. 917 (1993).
266. Eisgruber & Sager, supra note 207, at 454.
267. Laycock, supra note 20, at 1016. The United States Supreme Court seems to concur with this position. See Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987) (holding that when the government acts "with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption come packaged with benefits to secular entities").
268. Laycock, supra note 59, at 347.
269. Laycock, supra note 20, at 1017. In a later article, Laycock claims that "the difficulty does not arise in the run of cases." Douglas Laycock, The Remnants of Free Exercise, 1990 SUP. CT. REV. 1, 17. Notwithstanding some exceptional cases, he says, "in most contexts, an exemption for religious practice does not encourage non-believers to join the faith. Much religious activity is self-restraining, burdensome, or meaningless to non-believers." Id.
270. See Laycock, supra note 59, at 347; Laycock, supra note 20, at 1017-18.
271. I am aware of the polemic nature of the previous description, and I do not mean to ridicule Laycock's suggestion which sometimes may work.
272. The prohibition is grounded on the statement in Babylonian Talmud, Nazir 59a: "R. Eliezer b. Jacob says: How do we know that a woman should not go to war bearing arms? Scripture says, 'A woman shall not wear that which pertaineth unto a man.'"
273. Halakhah discourages swearing.
274. See McConnell, Institutions and Interpretation, supra note 213, at 157 (stating that "[d]emonstrably hostile or discriminatory acts against religion are blessedly rare in this country, but ostensibly neutral impositions on religion - especially minority religions - are common").