"Federalism and Faith"

Here's a new paper, "Federalism and Faith," by Chip Lupu and Bob Tuttle, two of the country's leading and most prolific law-and-religion scholars:

Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court’s decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy.

This paper offers a focused (re)consideration of federalism and faith. Part I offers a succinct look at federal-state relations on the subject of religion prior to Reconstruction. Part II confronts the constitutional developments that emerged from the Civil War and Reconstruction, and traces the Reconstruction story into the 20th century, when the Supreme Court first applied the Religion Clauses to the states. Part III then briskly chronicles the rise of Separationist interpretations of both Religion Clauses, and the incomplete recession to narrow interpretations of the Religion Clauses that mark the past several decades.

Part IV represents our contextualized effort to add value to the conversation about faith and federalism. State discretion over religion policy is a function of two considerations - the substantive content of the First Amendment, and the extent to which the First Amendment binds the states. In order to test a series of intuitions about faith and federalism, we analyze in Part IV a series of three problems– one in which the state pursues Separationist goals, and the other two in which the state appears to be promoting or aiding religion. Part IV considers these problems within three, distinct regimes of federalism: 1) the current regime of full incorporation of the First Amendment’s Religion Clauses; 2) a regime in which the states remain bound by the Free Exercise Clause but are liberated from the Establishment Clause; and 3) an imagined regime of partial incorporation, designed to maintain core non-Establishment norms while explicitly expanding state discretion in the periphery of non-Establishment. We believe that exploration of these problems, and of contrasting regimes of state discretion, will cast considerable light on what is at stake in the battle over federalism and faith.

A few years ago, my friend Rich Schragger published an interesting piece that addressed similar questions and themes, "The Role of the Local in the Discourse and Doctrine of Religious Liberty":

Much of the Supreme Court's modern religion clause doctrine has been forged in conflicts that directly implicate the traditional powers of local governments: primary and secondary education, land use, police powers. Constitutional theorists have rarely treated this jurisdictional fact as significant because the post-incorporation Court has never made a distinction among levels of government - local, state, or federal - when considering Establishment or Free Exercise Clause challenges. This Article argues that courts and commentators should make such a distinction. More specifically, it argues that local regulations that burden or benefit religious belief, conduct, or exercise have different institutional effects than do similar state or national regulations, and that these differential effects should be taken into account when determining the contours of the Establishment and Free Exercise Clauses.
The usual parochialism story is that local political institutions are often hostile to religious minorities and therefore particularly in need of central oversight - judicial or otherwise. I argue against this conventional wisdom. I contend that local government - and more generally the decentralization of power - is a robust structural component of religious liberty. On this account, the chief threat to religious liberty is the exercise of centralized power generally, either to benefit religion as a class or to burden it. The Court's religion clause jurisprudence should therefore be more skeptical of federal statues and regulations that touch on religion than similar local statutes and regulations. On this argument local governments are appropriate sites - not the only sites, certainly, but central and overlooked sites - for the negotiation of church-state relations.