THE pluralist predicament

Legal Theory

Volumn 10, Issue 2, 2004, Pages 51-76

  Smith, Steven D ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 85022443661     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325204000175     Document Type: Article

References (55)

1. The essay was written in response to an invitation for a discussion, in approximately 10,000 words, of the “state of the art” in contemporary theorizing about the law of religious freedom. Any such undertaking necessarily must make heavier-than-usual use of selection and distillation. These streamlining methods have their risks and their costs, but they might also have benefits; readers will judge.
2. See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971); Allegheny County v. ACLU, 492 U.S. 573 (1989).
3. See, e.g., Sherbert v. Verner, 474 U.S. 398 (1963); Employment Division v. Smith, 494 U.S. 872 (1990). For an argument showing that these apparently different doctrines collapse into each other, see Larry Alexander, Are Smith and Hialeah Reconcilable? 13 CONST. COMM. 285 (1996).
4. U.S. 1 (1947).
5. See Robert Bork, Neutral Principles and Some First Amendment Problems, 41 IND. L.J. 1, 22 (1971) (“We are… forced to construct our own theory of the constitutional protection of speech. We cannot solve our problems simply by reference to the text or to its history”).
6. I have argued at length for this jurisdictional interpretation in STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM 17-50 (1995).
7. According to the jurisdictional construction noted earlier, this failure to select among principles was not an oversight or shortcoming but rather was quite deliberate; the whole point of the clauses was not to make such a selection but rather to leave the matter to the states.
8. PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (2002).
9. See Rosenberger v. Rector, University of Virginia, 515 U.S. 819, 863, 868-872 (1995) (Souter, J., dissenting).
10. See, e.g., HAMBURGER, University of Virginia note 9, at 94-95. For a review elaborating on this difficulty, see Douglas Laycock, The Many Meanings of Separation, 70 U. CHI. L. REV. 1667 (2003).
11. Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 WM. & MARY L. REV. 2105, 2131 (2003).
12. Barnes-Wallace v. Boy Scouts of America, 275 F. Supp. 2d 1259 (S. D. Cal. 2003).
13. See, e.g., Charles Taylor, Modes of Secularism, in SECULARISM AND ITS CRITICS 31 (Rhajeev Bhargava, ed., 1998); JOHN RAWLS, POLITICAL LIBERALISM xxiv-xxviii (paperback ed., 1996).
14. See almost any of the arguments collected in BRIAN TIERNEY, THE CRISIS OF CHURCH AND STATE, 1050-1300 (first published 1964). On the heavily Christian cast of early-modern theorizing, see, generally, ANDREW R. MURPHY, CONSCIENCE AND COMMUNITY: REVISITING TOLERATION AND RELIGIOUS DISSENT IN EARLY MODERN ENGLAND AND AMERICA (2001).
15. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring).
16. Theorists disagree about the domain of the constraint. The constraint might apply to all public decisions, or only to decisions enforced coercively, or it might apply only to matters involving “constitutional essentials and questions of basic justice”; RAWLS, Lynch v. Donnelly note 14, at 214.
17. Some theorists seem of late to have embraced the view that government may reject some religious views so long as it does so implicitly, not explicitly. See, e.g., Steven H. Shiffrin, Liberalism and the Establishment Clause, 78 CHI-KENT L. REV. 717, 726 (2003); Andrew Koppelman, No Expressly Religious Orthodoxy: A Response to Steven D. Smith, 78 CHI-KENT L. REV. 729, 733-734 (2003). For my criticisms, see Steven D. Smith, Barnette's Big Blunder, 78 CHI-KENT L. REV. 625, 645-647 (2003).
18. See JEREMY WALDRON, GOD, LOCKE, AND EQUALITY (2002).
19. See JOHN T. NOONAN, Jr., THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM 72-75 (1998).
20. Reprinted in THE SUPREME COURT ON CHURCH AND STATE 25 (Robert S. Alley, ed., 1988). For a discussion of the shift in theoretical frameworks for thinking about religious freedom from religious to more secular, see Michael W. McConnell, Why Is Religious Liberty the “First Freedom”? 21 CARDOZO L. REV. 1243 (2000).
21. The discussion in this section is my attempt to distill the key themes and objections in what has become a voluminous literature. For two especially careful and contrasting analyses, see CHRISTOPHER J. EBERLE, RELIGIOUS CONVICTION IN LIBERAL POLITICS (2002); and ROBERT AUDI, RELIGIOUS COMMITMENT AND SECULAR REASON (2000).
22. Recently, for example, “neutrality” has often been invoked by proponents of broadly based school voucher programs that include religious schools on a nondenominational basis along with nonreligious schools or of “faith-based initiatives” programs that allow religious service providers to receive government funding along with more secular providers. The approach may be attractive-I am inclined in my waffling to think so-and there is nothing to prevent the use of the term “neutrality” to describe it. But we should also note the very limited nature of this “neutrality”; it is a “neutrality” that self-consciously rejects the views both of no-aid “separationists” (both religious and secular) and also of those who favor public support for a more selective range of religion (Christian and Jewish but not Muslim, perhaps).
23. For elaboration of this point, see Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 MICH. L. REV. 266, 325-331 (1987).
24. See Stephen Macedo, Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism, 26 POL. THEORY 56, 61, 63 (1998).
25. See SMITH, FOREORDAINED FAILURE, Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism note 7, at 77-97. Supporters may try to defend this position by arguing that even though the teaching of evolution admittedly has the effect of contradicting and hence opposing biblical literalist views of creation, that is not the motive or purpose of such teaching. Schools teach evolution, presumably, not because they are trying to stamp out Christian fundamentalism but simply because evolution is supported by the available scientific evidence. But this description, even assuming its complete accuracy, does nothing to rescue a curriculum teaching evolution and not creationism from the suspicion that it fails to achieve religious neutrality either in its effects or in the purposes and considerations that generate the policy. After all, as Stephen Carter has argued, the assumption that the school curriculum should be based on what scientific evidence indicates rather than what the Bible (literally) teaches, however sensible, plainly rejects one method of ascertaining truth (and of structuring the curriculum) in favor of a different method. Stephen L. Carter, The Resurrection of Religious Freedom? 107 HARV. L. REV. 118, 140 (1993).
26. William James, The Will to Believe, in THE WILL TO BELIEVE AND OTHER ESSAYS IN POPULAR PHILOSOPHY AND HUMAN IMMORTALITY 1, 3, 11 (Dover, ed., 1956).
27. Edward P. Foley, Political Liberalism and Establishment Clause Jurisprudence, 43 CASE W. RES. L. REV. 963, 965-966, 973-974 (1993).
28. What Foley may fail to appreciate is Rawls's attempt to separate political philosophy from questions and claims about “truth” altogether. But that strategy produces serious problems of its own. For critical discussion, see Jody S. Kraus, Political Liberalism and Truth, 5 LEGAL THEORY 45 (1999).
29. C.D. BROAD, FIVE TYPES OF ETHICAL THEORY 128 (1959).
30. Both “secular” and “religion” are problematic concepts, but the difficulties cannot be examined in the course of this short essay. For further discussion, see Steven D. Smith, The “Secular,” the “Religious,” and the “Moral: What Are We Talking About? 36 WAKE FOREST L. REV. 487 (2001).
31. See Eberle, Both “secular” and “religion” are problematic concepts, but the difficulties cannot be examined in the course of this short essay. note 22, at 145.
32. This objection is pressed in MICHAEL J. PERRY, UNDER GOD? RELIGIOUS FAITH AND LIBERAL DEMOCRACY 32-33 (2003); Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 UTAH L. REV. 639, 655-656.
33. See, e.g., Rawls, UNDER GOD? RELIGIOUS FAITH AND LIBERAL DEMOCRACY note 14, at 48-54.
34. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982).
35. See, e.g., KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988).
36. KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995).
37. See Perry, PRIVATE CONSCIENCES AND PUBLIC REASONS note 35, at 38-44.
38. For more extended arguments to this effect, see Douglas Laycock, Freedom of Speech that Is Both Political and Religious, 29 U. C. DAVIS L. REV. 793 (1996); Jeremy Waldron, Religious Contributions in Public Deliberation, 30 U. SAN DIEGO L. REV. 817 (1993).
39. RONALD BEINER, PHILOSOPHY IN A TIME OF LOST SPIRIT 55 (1997).
40. There is no reason why religious rationales cannot be given for nonestablishment commitments. Early-modern advocates of nonestablishment often emphasized the importance of purity of the Church, and this rationale is still occasionally invoked.
41. JOHN H. GARVEY, WHAT ARE FREEDOMS FOR? 42-49, 56-57 (1996). These objections hardly exhaust the criticisms of rationales based on autonomy and civil peace. In this essay, however, I have not focused on standard rationales for religious freedom based on this and similar generic values largely because I do not think discussion of such rationales has been the most interesting or important theorizing about religious freedom in recent years. And the most serious theorizing on these subjects has tended to criticize these generic value rationales as inadequate. For a discussion of the major rationales and objections, see SMITH, FOREORDAINED FAILURE, There is no reason why religious rationales cannot be given for nonestablishment commitments. note 7, at 99-117.
42. GARVEY, WHAT ARE FREEDOMS FOR? note 46, at 54.
43. Larry Alexander, Good God, Garvey! The Inevitability and Impossibility of a Religious Justification of Free Exercise Exemptions, 47 DRAKE L. REV. 35 (1998).
44. The qualification is necessary because it seems that many religionists today do at least think they believe something that resembles this aggressively latitudinarian position. See, generally, ALAN WOLFE, THE TRANSFORMATION OF AMERICAN RELIGION 67-95 (2003).
45. Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 NYU L. REV. 346 (2002).
46. STEVEN D. SMITH, GETTING OVER EQUALITY: A CRITICAL DIAGNOSIS OF RELIGIOUS FREEDOM IN AMERICA 164-175 (2001).
47. See Feldman, GETTING OVER EQUALITY: A CRITICAL DIAGNOSIS OF RELIGIOUS FREEDOM IN AMERICA note 53, at 357-372, 424-446.
48. Id. at 424-25. I note, however, that from the “ultra-Protestant” perspective mentioned above, what Locke viewed as “absurd” is not so obviously illogical. To say that salvation is irrelevant to someone who does not believe in it would be no more logical than saying that germs are irrelevant to people who do not believe in them. Hence though atheism might not support the justification for respecting conscience, it would not necessarily follow that atheists would not be protected by it. See SMITH, EQUALITY, GETTING OVER EQUALITY: A CRITICAL DIAGNOSIS OF RELIGIOUS FREEDOM IN AMERICA note 54, at 174.
49. Feldman, EQUALITY note 53, at 426.
50. BEINER, EQUALITY note 43, at 30.
51. Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis of Protecting Religious Conduct, 61 U. CHI. L. REV. 1245, 1250-1270 (1994).
52. MARIE FAILINGER, WONDERING AFTER BABEL, IN LAW AND RELIGION 94 (Rex J. Adhar, ed., 2000).
53. See, e.g., Steven D. Smith, Toleration and Liberal Commitments, inTOLERATION AND ITS LIMITS, NOMOS (2004); TOLERATION: AN ELUSIVE VIRTUE (David Heyd, ed., 1996).
54. I elaborate on these points at greater length in Smith, Toleration and Liberal Commitments note 63 at xx (forthcoming).
55. For a lengthy defense of the traditionalist approach, see Steven D. Smith, Separation as a Tradition, J. Law & Politics 215 (2002).