Thursday, June 30, 2005
Thanks to Michael for posting his St. Thomas article, which I had been fortunate to read a while ago, and for soliciting MOJ-ers' views on his claims. Michael asks, in the article, "what sorts of government action should we understand the nonestablishment norm to forbid?" The heart of answer, I think, is this:
Government may not act for the purpose of favoring any church in relation to any other church on the basis of the view that the favored church is, as a church, as a community of faith, better along one or more dimensions of value -- truer, for example, or more efficacious spiritually, or more authentically American.
Michael goes on to explain, among other things, why some government affirmations of "religious premises" do not violate this norm. And, he appears to endorse Justice Scalia's view (which Jack Balkin has criticized forcefully here) that the nonestablishment norm does not disable the government from affirming religious premises that are "sectarian" as between the great monotheisms (Judaism, Islam, Christianity), on the one hand, and other religions (e.g., Buddhism, Hinduism) on the other.
Michael was kind enough to ask for my reactions: I think that Michael's proposed answer to the question, "what does the Establishment Clause forbid", is a good one, and that his article is as valuable as it is clear. That said, there are some matters that Michael appears willing to take as given -- e.g., that the Establishment Clause itself is correctly understood as constraining state and local governments, and that "affirming religious premises", as opposed to legislating or punishing, is the kind of state action to which the Clause can be applied -- that I cannot help believing call for additional examination. (Michael is right, of course, that these issues are, for all practical purposes, settled). I would also wonder if Michael's proposed answer is able to respond well to what I regard as a serious Religion Clause problem, namely, the possibility that government efforts to enforce its own norms through (for example) anti-discrimination statutes could interfere with the independence and freedom of churches and religious communities. To put the matter more directly, does the Establishment Clause require an exemption (assuming that the Free Exercise Clause does not, given Smith) for churches, religious schools, etc. from anti-discrimination laws?