Religion and Local Power

Abstract

In church-state cases, courts have not generally treated claims challenging local government actions differently than claims challenging federal or state government actions. But they should. Local governments are the true repositories of self-governance. They have historically served as a vital mechanism through which communities identify and implement their values. We should learn from the theoretical truths which that history reveals, especially for church-state problems. Local government actions that affect religious interests are by nature less harmful, and more likely to reflect the governed populace’s wishes, than similar federal or state government actions. In a massive and diverse nation, then, local variation is critical to the goal of accommodating the many deep and competing convictions regarding matters like religious exemptions, government funding of religious entities, and the like.

To respect the democratic ideals embodied through local government action, the Supreme Court must no longer constrain local governments in the exact same way as it does “larger” bodies in the context of church-state cases. Until the Supreme Court recognizes this distinction, lower courts should take advantage of limited opportunities to do so. Modern doctrine does, mostly by accident, provide several foundations from which to grant more discretion to local governments on matters of religion. From the Supreme Court’s various free-exercise and establishment balancing tests, and from principles foundational to the law of remedies, courts can create space for local governments to experiment within the broad bounds of constitutional permissibility in pursuit of the public good. Our democratic ideals demand that space.

Keywords: Constitutional, First Amendment, Local Government, Religion, Religious Liberty, Cities, Establishment, Free Exercise