Thursday, December 27, 2012
Here is Stanley Fish's "Christmas Column," "Religious Exemptions and the Liberal State." The piece is, among other things, a reflection and reaction to Brian Leiter's new book, Why Tolerate Religion? As Fish puts Brian's question: "Does the undoubted centrality of religion in the lives of its adherents suffice to justify exempting it from generally applicable laws?" Fish ends his discussion with this:
If Leiter is right and religion is no different from any other comprehensive doctrine (John Rawls’s term), why should there be a religion clause? There is of course a standard historical answer to that question. The desire for religious freedom motivated those Europeans who came to North America in the 17th century. It makes sense that the founding document of their new nation should protect the individual from state-sponsored religious discrimination (the Free Exercise clause) and protect the state from becoming an appendage of religion (the Establishment Clause). Leiter, however, is not interested here in the history of the matter. He is seeking, as he says repeatedly, a principled philosophical justification of the special treatment religion seems to receive in the Constitution. He doesn’t find one and comes to conclusions that render the religion clause largely superfluous.
He thus participates in a project inaugurated by the first important establishment clause case of the modern era, Everson v. Board of Education (1947), a case in which the majority shifted the focus from the question of whether public funds were being expended for religious purposes to the question of whether public funds were being distributed evenhandedly to religious and secular institutions alike. A religion clause issue became an equal treatment issue. In dissent, Justice Rutledge complained that by so reasoning the majority ignored “the religious factor … thereby leaving out the only vital element in the case.” Ignoring the religious factor or generalizing it out of sight has been the approved strategy of religion clause jurisprudence ever since. In fact it might be said that the purpose of religion clause jurisprudence, a purpose Leiter joins, is to ensure that the religion clause causes as little trouble as possible.