78 Pages Posted: 14 Apr 2005
Date Written: March 28, 2005
The law of the religion clauses is primarily a judicial exercise in mediating the inherent conflict between the clauses, for some accommodations of religion are required by the free exercise clause and other accommodations of religion are prohibited by the establishment clause. Judicial mediation of this tension will produce one of four distinctive patterns, each characterized by the relative degree of deference the judiciary displays toward legislative judgments of appropriate accommodation that are claimed to offend the free exercise clause, the establishment clause, or both. Judicial primacy is the pattern in which the Court displays the least deference toward legislative judgments of religious accommodation, by means of robust enforcement of both clauses. Legislative primacy is the polar opposite of judicial primacy. Under legislative primacy the Court defers to legislative judgments of religious accommodation by lax enforcement of both clauses. Judicial secularism is a pattern by which the Court vigorously enforces the establishment clause and loosely enforces the free exercise clause, thus restricting the ability of legislatures to decide when to accommodate religion without violating the establishment clause, but leaving them with relatively greater freedom to decide whether or not to accommodate religious conduct. Judicial accommodation is a pattern by which the Court energetically enforces the free exercise clause to require many accommodations of religious conduct, but is less willing to strike down other types of accommodations that allegedly violate the establishment clause. The result of judicial accommodation is that legislatures are given considerable freedom to accommodate religion without violating the establishment clause, but are required to accommodate religious conduct.
When the law of the religion clauses began to develop in earnest in the middle of the twentieth century it developed toward the judicial primacy pattern, but as the century, waned and turned the millenial milepost the law of the religion clauses has begun to assume the shape of legislative primacy. This change has been influenced by political and cultural changes. The de facto Protestant establishment that persisted from the nation's beginning to the twentieth century collapsed by mid-century and in its wake a new coalition of religious and secular allies began to press for broader governmental assistance to religion. At the same time the age of modernity - the Enlightenment commitment to rationalism as the avenue to truth, which had replaced the medieval commitment to religious faith - began to be undermined by post-modernism, the belief that there are no universal truths. Modernity had posed a conflict between two competing explanations of truth; post-modernism accepts that no account can be known to be true. The paradoxical result is that religion has been freed from the margins to which modernity had consigned it. Moreover, much of traditional religion has been replaced by a distinctively post-modern spirituality, a preoccupation with self-understanding that borrows eclectically from many ways of apprehending transcendent reality, both religious and secular. The resulting religious pluralism has increased the pressure upon political actors to accommodate a variety of religions and, simultaneously, made imperative the need to avoid compelling governments to accommodate the limitless variety of conduct that may be the product of religious belief.
Legislative primacy produces both behavioral and doctrinal effects. The principal behavioral effect is to encourage a political marketplace of religion, in which religious and secular actors engage in rent seeking in the form of government benefits to religion. Benefits, however, can come in the form of favors bestowed on any given rent seeker or burdens placed on rival rent seekers. By-products of religious rent seeking include increased proselytizing, because successful proselytizers will secure an advantage in religious rent seeking, and increased contentiousness concerning the proper role of religion in public life. The likely doctrinal effects of legislative primacy include the terminal irrelevance of Lemon, increased emphasis on non-discrimination between religious groups, a sharper conflict between the competing endorsement and coercion tests for detecting establishment clause violations, and a heightened judicial focus upon the legislative purpose underlying ostensibly neutral measures that deliver religious effects.
While it is too soon to know whether legislative primacy will ameliorate or exacerbate religious conflict; it is not too soon to declare that we are entering a new era of the law of the religion clauses. Perhaps the metaphysics of post-modernism will produce sufficient religious toleration that the political dynamic of religious rent seeking will moderate, and the result will be an increase in aggregate preference satisfaction without destabilizing side effects. But it is also possible that the mixture of extreme religious pluralism, post-modern uncertainty, and religious rent seeking will prove to be a volatile mixture.
Keywords: constitutional law, religion
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