Thursday, June 30, 2005
Thanks to Rick for his post this morning.
1. Rick writes: "[T]here 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 ...--that I cannot help believing call for additional examination." Well, yes. But given that the nonestablishment norm applies to the states as well as to the federal government--this is, after all, constitutional bedrock--my interest was in asking what the nonestablishment norm is best understood to mean, as a general matter. Asking whether there is an adequate historical warrant for the proposition that the nonestablishment norm applies to the states as well as to the federal government is a rather different project. Because that proposition is constitutional bedrock, the historical question is of much less practical interest than otherwise it would be. In any event, I wonder whether there's more to say about the historical question than has already been said by various disputants (Curtis, Lash, Smith, Bybee, etc.)
2. Rick also writes: "[T]here are some matters that Michael appears willing to take as given -- e.g., ... 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." I don't understand Rick's distinction between government's "affirming religious premises" on the one hand and its "legislating or punishing" on the other. At any rate, that is not *my* distinction: It is in the course of "legislating or punishing", among other activities, that government affirms premises, some of which may be religious. Pace Cool Hand Luke, what we (may) have here is a failure to communicate.
3. Finally, Rick writes: "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?"
I am puzzled by this question. I would have thought that the problem Rick identifies is a free exercise problem, not an establishment problem--or, put another way, a religious liberty problem, not an establishment problem. Why should we think that the nonestablishment norm--as distinct from the free exercise norm--might require an exemption? Is there a nonestablishment theory percolating out there that makes Rick's question less puzzling?