Federalism, Democracy, and Deep Disagreement: Decentralizing Baseline Disputes in the Law of Religious Liberty

57 Pages Posted: 14 Aug 2017

Date Written: August 11, 2017


Citizens disagree vehemently about their rights. Democracies can sometimes resolve these disagreements by majority vote, but, where each side of a disagreement makes plausible arguments that their interests are fundamental, refraining from taking any official position on the dispute can reduce acrimony deleterious to political cooperation. In many areas of the law, the “state action” or “discriminatory purpose” doctrines can provide at least the illusion of such governmental neutrality even when the state’s policies have “incidental” effects on one or the other side’s positions. For some areas of the law, however, political and legal traditions foreclose such side-stepping maneuvers. In these areas, disagreements are “deep” in the sense that any governmental vindication of one side’s version of fundamental rights is a plausible violation of the other side’s version.

The Religion Clauses’ doctrines provide an example of such intractably “deep” disagreements. Because such doctrines frequently rest on notions of “coercion” that resist responsibility-limiting theories of “state action” and “discriminatory purpose,” there is no way for state officials to escape choosing sides: Officials’ accommodating or failing to accommodate either religious belief or unbelief can be plausibly regarded as a violation of religious liberty. Such disputes are “reasonable and deep disagreements – “RADDs” – that pose a special threat to democratic equality in the definition of rights.

This article urges that decentralization protects what Jeremy Waldron calls the “right of rights” – that is, the right to enjoy an equal share of power in defining disputed rights. Applying a presumption that religious RADDs should be decentralized, the article argues for a broad power of the states across the board either to extend or deny exemptions from regulatory burdens for religious believers in cases like Hobby Lobby and Masterpiece Cakeshop, Inc. v. Colorado and to exclude or include religious organizations in generally applicable benefits like vouchers and school charters despite cases like Trinity Lutheran Church v. Comer. By contrast, following the example of Catholic Bishop v. NLRB (1979) and City of Boerne v. Flores (1998), courts ought to construe narrowly the power of the federal government to define religious accommodations. Such decentralization protects state power to vary accommodations for religious believers and non-believers alike, thereby assuring equal concern and respect to both.

Keywords: Federalism, Free Exercise of Religion, Establishment Clause, Bill of Rights, Constitutional Law

Suggested Citation

Hills, Roderick Maltman, Federalism, Democracy, and Deep Disagreement: Decentralizing Baseline Disputes in the Law of Religious Liberty (August 11, 2017). NYU School of Law, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3017530 or http://dx.doi.org/10.2139/ssrn.3017530

Roderick Maltman Hills (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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