The New Disestablishments

35 Pages Posted: 26 May 2022 Last revised: 31 May 2022

See all articles by Marc O. DeGirolami

Marc O. DeGirolami

St. John's University - School of Law

Date Written: April 30, 2022

Abstract

The individual has complete autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the preferences of that class in this domain, should be imposed on everyone. These views reflect two central creeds of the new establishment. They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, health care and medicine, and more.

Whether these propositions and others like them constitute a “religious” establishment is irrelevant. To be sure, there are arguments that it is religious. But the hypertrophy of the concept of religion in American law has made the legal category “religion” so malleable as to render it useless as an analytical tool. And, at any rate, religious belief responds to the world in which it is situated. When that world tells dissenting citizens that their beliefs are irrational, anti-scientific, and benighted—and, indeed, that their objections to new establishment creeds are discreditable because they are religious—dissenters may be forgiven for taking the world at its word. If these dissenting views are religious, it is the new establishment that has made them so and, in consequence, entangled itself in religious controversy.

Free exercise exemption has been thought a way to resist the new establishment. Yet the dynamics of resistance are ambiguous. Individual exemption—unless connected to a larger strategy—can validate and strengthen the new establishment, entrenching the supplicant position of the exempted. Many advocates of exemption do not object to this state of affairs. They insist that they have no interest in disrupting the new establishment. They are committed to it, too. Yet partisans of the new establishment are not wrong to sense possible danger from expanding rights of free exercise. These rights, if synthesized and organized, could become broader pockets and sub-communities of disestablishment. There is a continuum between free exercise and disestablishment. Dissenting positions on the family, education, religion, sex and gender, and others might be stitched together from the disaggregated set of free exercise exemption micro-victories to constitute challenges to the new establishment. To do that, however, would demand concerted action involving some mechanism other than exemption, and it is not plain that advocates of religious exemption are interested in that project. But the project may be coming whether they like it or not. Unlike the new establishmentarians, some free exercise advocates have not adequately appreciated (or do not wish to see) that the real fight is not about an individual exemption here or there, but about the future shape of the American establishment.

Keywords: religious liberty, individual autonomy, exemption, establishment clause, constitutional law, free exercise

JEL Classification: K10, K19, Z12, Z18

Suggested Citation

DeGirolami, Marc O., The New Disestablishments (April 30, 2022). Liberty & Law Center Research Paper No. 22-08, Available at SSRN: https://ssrn.com/abstract=4119880 or http://dx.doi.org/10.2139/ssrn.4119880

Marc O. DeGirolami (Contact Author)

St. John's University - School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States

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