Thursday, June 30, 2005
Thanks to Michael for responding so quickly to the questions I floated about his St. Thomas article on the non-establishment norm. From Michael's post, I'm afraid that I did more to muddy the waters than to move the ball. (Mixed-metaphors and hoary cliches alert!).
First, Michael is right, of course, that my doubts about the historical and textual warrants for the proposition that the nonestablishment norm applies to the states as well as to the federal government is "a rather different project" than the one Michael takes on in his article, and that these doubts are, probably, of "much less practical interest" than Michael's efforts to supply content to the Clause that we -- for better or worse -- have. Still, it seems to me that the "federalism" question and the "content of the norm" question are related, it seems to me. And, an effort to identify the correct content of the norm will, I think, take us to questions about the governments to which the norm was thought to apply. In any event, the incorporation of the EC is, I agree, "bedrock" (or, as I tell my students, "water under the bridge.").
Second, Michael asks about the distinction I raised "between government's 'affirming religious premises' on the one hand and its 'legislating or punishing' on the other." I meant to raise the question whether the non-establishment norm, as Michael defines it, applies to some state actions -- passing laws that constrain, punish, regulate, prescribe behavior -- in the same way that it applies to others -- expression by government officials, displaying symbols on public property, etc. The First Amendment refers to "mak[ing] law." Arguably, symbolic expression -- e.g., putting up a display -- is not lawmaking. If it is not, then is it clear that the same non-establishment norm should apply?
Third, I asked whether the Establishment Clause, as opposed to the Free Exercise Clause, might require exemptions for churches and religious communities from certain anti-discrimination or other regulations (e.g., a requirement that Catholic Charities provide contraceptives coverage, or that the Catholic Church ordain women). At present, it is not clear where such an exemption -- if one were constitutionally required at all -- would come from. Certainly, the matter sounds in free exercise, but there are, in fact, "nonestablishment theories percolating out there" that would seem to suggest that Establishment Clause has work to do here, too.