Does it matter what religion is?

Notre Dame Law Review

Volumn 84, Issue 2, 2009, Pages 807-835

  Eisgruber, Christopher L ^a   Sager, Lawrence G ^b  

^a PRINCETON UNIVERSITY   (United States)

^b UNIVERSITY OF TEXAS   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 62149100664     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (90)

1. The skit can be viewed at YouTube.com, Monty Python: World's Funniest Joke, http://www.youtube.com/watch?v=LhmnOpoGAPw (last visited Nov. 18, 2008).
2. See CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION 11-13, 54-55 (2007).
3. Id. at 11.
4. Id.
5. Id.
6. Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449, 450 (1969); see also Kent Greenawalt, Hands Off! Civil Court Involvement in Conflicts over Religious Property, 98 COLUM. L. REV. 1843 (1998) (exploring courts' limitations in resolving conflicts over religious property).
7. See Greenawalt, supra note 6, at 1890-94 (illustrating the problems in deciphering intent to donate an inter vivos gift to a religious institution that fundamentally changed its character after the donation).
8. For a sampling of recent additions to the vast literature making this argument, see, for example, Barbra Bennett, Twentieth Century Approaches to Defining Religion: Clifford Geertz and the First Amendment, 7 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 93, 131 (2007) (describing courts' struggle to find criteria on which to base a definition of religion); L. Scott Smith, Constitutional Meanings of 'Religion' Past and Present: Explorations in Definition and Theory, 14 TEMP. POL. & CIv. RTS. L. REV. 89, 135-37 (2004) (arguing that a single definition of religion does not meet the needs of a pluralistic society such as the United States); Jeffrey Omar Usman, Defining Religion: The Struggle to Define Religion Under the First Amendment and the Contributions and Insights of Other Disciplines of Study Including Theology, Psychology, Sociology, the Arts, and Anthropology, 83 N.D. L. REV. 123, 188-93 (2007) (exploring the diversity in other disciplines' definitions of religion and their applicability to a legal definition); Jeffrey L. Oldham, Note, Constitutional "Religion": A Survey of First Amendment Definitions of Religion, 6 TEX. F. ON C.L. & C.R. 117, 167-71 (2001) (arguing for a narrow faith-based definition of religion which would include a belief in a supernatural element related to explanations of good and evil).
9. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .").
10. See EISGRUBER & SAGER, supra note 2, at 54-55.
11. Two important exemplars of this critique are STEVEN D. SMITH, FOREORDAINED FAILURE 45-61 (1995) and Stanley Fish, Mission Impossible: Settling the Just Bounds Between Church and State, 97 COLUM. L. REV. 2255, 2264-65 (1997). Smith and Fish claim that theories of religious freedom inevitably suffer from contradiction; hence the quest for such a theory is a "foreordained failure" or an "impossible mission." See SMITH, supra, at 99-117; Fish, supra, at 2324-32. For our responses to these arguments, see Christopher L. Eisgruber & Lawrence G. Sager, Unthinking Religious Freedom, 74 TEX. L. REV. 577, 590-614 (1996) (book review) and Christopher L. Eisgruber, Book Review, 16 J.L. & RELIGION 259 (2001).
12. See EISGRUBER & SAGER, supra note 2, at 51-73.
13. See id. at 89.
14. See, e.g., Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976) (holding that civil courts have no authority to review church judgments about religious doctrine).
15. See Greenawalt, supra note 6.
16. For a broad review of the disestablishment principle, see Steven D. Smith, Separation and the "Secular": Reconstructing the Disestablishment Decision, 67 TEX. L. REV. 955 (1989).
17. See Christopher L. Eisgruber & Mariah Zeisberg, Religious Freedom in Canada and the United States, 4 INT'L J. CONST. L. 244, 262-67 (2006) (describing the Supreme Court of Canada's adoption of a disestablishment norm).
18. See id.
19. U.S. 421, 435-37 (1962).
20. This consensus also embraces many national religious organizations. See, e.g., Kathleen A. Brady, The Push to Private Religious Expression: Are We Missing Something?, 70 FORDHAM L. REV. 1147, 1153-55 (2002) (describing a "new consensus" among scholars and jurists).
21. Thomas v. Review Bd., 450 U.S. 707 (1981).
22. Frazee v. 111. Dep't of Employment Sec., 489 U.S. 829 (1989).
23. Thomas, 450 U.S. at 710.
24. Id.
25. Id.
26. Id. at 710-11.
27. Id. at 710-13.
28. Id. at 710-12.
29. Id. at 711.
30. Id. at 714.
31. Id. (footnote and internal quotation marks omitted).
32. Id. at 716.
33. Frazee v. Ill. Dep't of Employment Sec, 489 U.S. 829 (1989).
34. Id. at 830.
35. Id. at 831.
36. Id. at 835.
37. Id. at 834.
38. Id.
39. Id.; Thomas v. Review Bd., 450 U.S. 707, 714 (1981).
40. One of the few critics of the Court's approach is Samuel J. Levine. See, e.g., Samuel J. Levine, Rethinking the Court's Hands-Off Approach to Questions of Religious Practice and Belief, 25 FORDHAM URB. L.J. 85, 85-87 (1997). Levine suggests that by extending equal constitutional protection to idiosyncratic beliefs, the Court may have made it less attractive for judges to protect conventionally recognized beliefs. Id. at 87.
41. Greenawalt, supra note 6, at 1865 (summarizing relevant constitutional and judicial values and arguing that " [a]ccomplishing some as fully as possible means sacrificing others").
42. See id. at 1906.
43. Katz v. Singerman, 127 So. 2d 515, 518 (La. 1961). Greenawalt's discussion of this case appears in Greenawalt, supra note 6, at 1890-92.
44. See Greenawalt, supra note 6, at 1890-94.
45. See, e.g., Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 441-43 (1969).
46. See Greenawalt, supra note 6, at 1890-94.
47. Id. at 1905 ("[B]ecause of various competing values, no resolution of the role of civil courts is fully satisfactory. Perhaps the most fundamental dilemma is that courts cannot both avoid resolving religious questions and give effect to all the expectations of those deeply involved in religious organizations.")
48. Sherwood v. Walker, 33 N.W. 919, 920 (Mich. 1887).
49. Id.
50. For default rule theories, see Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87 (1989) and Charles J. Goetz & Robert E. Scott, The Limits of Expanded Choice: An Analysis of the Interactions Between Express and Implied Contract Terms, 73 CAL. L. REV. 261 (1985).
51. See supra notes 43-49 and accompanying text.
52. Contract law typically distinguishes between mistakes about present facts (such as whether Rose was fertile at the time she was sold) and the failure to anticipate future events that arguably frustrate completion of the contract (such as occurred when the Jewish congregation fractured). See supra note 43 and accompanying text. For our purposes, at least, this distinction is immaterial.
53. See supra notes 21-39 and accompanying text.
54. See, e.g., In re Multi-Circuit Episcopal Church Prop. Lit., CL 2007-0248724 (Va. Cir. Ct. June 27, 2008), available at http://www.thediocese.net/News-services/Prop-erty/5-questions.pdf (deciding five questions about controlling case law regarding church property).
55. See supra note 50 and accompanying text.
56. Greenawalt reaches a similar conclusion. See, e.g., Greenawalt, supra note 6, at 1892 ("Courts should not assume that a grantor intended continuation of any specific practices, unless the grant explicitly covers those practices, or the new practices, according to an overwhelmingly dominant public understanding, make the group a different kind of religious body." (footnote omitted)).
57. See supra notes 21-39 and accompanying text.
58. Frazee v. Ill. Dep't of Employment Sec, 489 U.S. 829, 833 (1989) (quoting Thomas v. Review Bd., 450 U.S. 707, 713 (1981) (alteration in original)).
59. Id. Bizarrely, the Court cited United States v. Seeger, 380 U.S. 163 (1965), to support this last proposition. The Seeger Court did indeed opine that only religious convictions were entitled to protection, but it then proceeded to protect (on statutory grounds) atheist convictions on the ground that they were functionally equivalent to religious beliefs. Seeger, 380 U.S. at 185-88.
60. Thomas, 450 U.S. at 713.
61. See U.S. CONST. amend. I.
62. See Tinker v. Des Moines Indep. Cmty. Sch. Dist, 393 U.S. 503 (1969).
63. See Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377 (2000).
64. See Texas v. Johnson, 491 U.S. 397 (1989).
65. See W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).
66. See Wooley v. Maynard, 430 U.S. 705 (1977).
67. Garry Wills, Romney and JFK: The Difference, N.Y. REVIEW OF BOOKS, Jan. 17, 2008, at 32, 32 (emphasis added).
68. See supra notes 2-5 and accompanying text.
69. See Frazee v. Ill. Dep't of Employment Sec., 489 U.S. 829, 833 (1989); Thomas v. Review Bd., 450 U.S. 707, 713 (1981).
70. EISGRUBER & SAGER, supra note 2, at 52-53.
71. See Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993, 1001-02 (1990); Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 156 n.187, 169 (1992).
72. Professor Greenawalt overlooks this central point when he suggests that our equality-driven view of religious liberty must eventually do something analogous to defining religion, albeit using a different vocabulary. See Kent Greenawalt, Hands Off: When and About What, 84 NOTRE DAME L. REV. 913, 917 (2009) (arguing that our position requires drawing a "line . . . cast in terms other than religion"). As the text accompanying this note makes clear, our theory does not depend in any way upon whether either Ms. Campbell's belief can be characterized in any sense as religious or quasi-religious. No lines of the sort that Professor Greeniwalt has in mind need to be drawn. Professor Greenawalt is also mistaken to suppose that we must define religion in order to apply the Establishment Clause. Id. at 915-16. In our view, the central Establishment Clause vice is that of governmental acts which carry a social meaning that denigrates believers outside the religious mainstream. Here too, only a conventional, commonsense understanding of religion is needed to render constitutional justice. See infra Part V. Under our theory, of course, difficult cases will arise, cases in which it will be difficult to say with confidence whether the governmental action in question is inconsistent with norms of fairness among a religiously diverse people. But all theories confront hard cases. The problem with the project of defining religion for the purposes of a regime of religious liberty is not that it will encounter hard cases; the problem is that the project is incoherent and self-contradictory at its core.
73. U.S. 163 (1965).
74. Id. at 165.
75. Id. (quoting the Universal Military Training and Service Act, 50 U.S.C. app. §456(j) (1958)).
76. Id.
77. Id. at 166.
78. Id. at 176.
79. Justice Harlan, who had joined the Court's opinion in Seeger, later admitted that he had done so reluctantly. He argued that Seeger's ultimate conclusion was correct, but only because the congressional statute would have been unconstitutional if its protections were limited to religious beliefs. See Welsh v. United States, 398 U.S. 333, 344-45 (1970) (Harlan, J., concurring).
80. For an overview of world religions, see STEPHEN SHAROT, A COMPARATIVE SOCIOLOGY OF WORLD RELIGIONS 3-20 (2001).
81. In our earlier writing, we have characterized this injustice as government behavior that fails to fully credit or fairly treat some groups or individuals on account of the "spiritual foundations" of their interests and commitments. See, e.g., EISGRUBER & SAGER, supra note 2, at 52 ("First, [our model] insists in the name of equality that no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects."). That formulation could lead readers of our work to think that we have simply substituted "spiritual foundations" for "religion," and that we seek to valorize and protect religion in this renamed guise; it could also lead readers to think that far from ducking the difficulty of defining religion, we've simply renamed our problem. But what we have meant to capture by our usage is what we say more explicidy here: we are concerned not with a constitutionally valorized activity, but with a constitutionally anticipated peril, the peril of discrimination provoked by religious diversity and its attendant culture.
82. Id. at 124-28.
83. See, e.g., Malnak v. Yogi, 592 F.2d 197, 198, 213-14 (3d Cir. 1979) (holding that the Science of Creative Intelligence/Transcendental Meditation is a constitutionally protected religion).
84. Id. at 214-15.
85. U.S. CONST. amend. I.
86. Id.
87. See, e.g., Jed Rubenfeld, Antidisestablishmentarianism: Why RFRA Really Was Unconstitutional, 95 MICH. L. REV. 2347, 2350 (1997) (arguing that the word "respecting" signifies that Congress is prohibited from dictating to states how to legislate on religion).
88. See Christopher L. Eisgruber, Censorship, Copyright, and Free Speech: Some Tentative Skepticism About the Campaign to Impose First Amendment Restrictions on Copyright Laws, 2 J. TELECOMM. & HIGH TECH. L. 17, 22 (2003).
89. EISGRUBER & SAGER, supra note 2.
90. Id. at 112-18