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Friday, December 21, 2012

Introduction to a Discussion: Koppelman on "Defending American Religious Neutrality"

Here's another piece of weekend reading. As Rick noted on this page a while back, our friend and colleague Andrew Koppelman has just published an excellent book on law and religion, Defending American Religious Neutrality. (Note that the Amazon page offers an excellent deal when you buy it with another particular book.) Here's what Steve Smith of San Diego has to say about it: "Neutrality has been the central but embattled ideal in the modern jurisprudence of religious freedom. Andrew Koppelman offers the most serious and sophisticated defense of that ideal now available. For anyone interested in these important debates, this book is not recommended reading: it is required." That seems right to me. It offers a wide-ranging and sophisticated explanation and defense of the role of neutrality in the American law of religious liberty, and even those of us who do not share all his views (and I think Andy has convinced me that he and I actually have a good deal of common ground) will find it a book to be reckoned with.

Andy has kindly offered an introduction to his book below and, God (or not God) willing and the creek don't rise, Rick and I should be posting some responses to the book in the next week or two, hopefully with some replies by Andy. We're grateful to have him. His post begins below and continues after the fold.

* * * 

The American law of freedom of religion is in trouble, because growing numbers of critics, including a near-majority of the Supreme Court, are ready to cast aside the ideal of religious neutrality.  My new book, Defending American Religious Neutrality (Harvard, 2013), defends the claim, which unfortunately has become an audacious one, that American religious neutrality is coherent and attractive.

Two factions dominate contemporary discussion of these issues in American law.  One, whom I’ll call the radical secularists, tend to regard the law of the religion clauses as a flawed attempt to achieve neutrality across all controversial conceptions of the good – flawed because it is satisfied with something less than the complete eradication of religion from public life.  The other, whom I’ll call the religious traditionalists, think that any claim of neutrality is a fraud, and that law necessarily involves some substantive commitments.  They claim that there is thus nothing wrong with frank state endorsement of religious propositions: if the state is inevitably going to take sides, why not this one?  One side regards religion as toxic and valueless; the other is untroubled by the state’s embrace of an official religion.  Neither sees much value in the way American law actually functions.

Yet America has been unusually successful in dealing with religious diversity.  The civil peace that the United States has almost effortlessly achieved has been beyond the capacities of many other generally well-functioning democracies, such as France and Germany.  Even if the American law of religious liberty were entirely incoherent, it might still be an attractive approach to this perennial human problem.  There is, however, a deep logic to the law that its critics have not understood.

Prominent scholars of religion have ridiculed President-elect Dwight Eisenhower’s 1952 declaration:  “Our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.”  Eisenhower nonetheless revealed a deep insight into the character of American neutrality.  This book aims to recover that insight.


Contrary to the radical secularists, First Amendment doctrine treats religion as a good thing.  It insists, however – and here it parts company with the religious traditionalists - that religion’s goodness be understood at a high enough level of abstraction that the state takes no position on any live religious dispute.  It holds that religion’s value is best honored by prohibiting the state from trying to answer religious questions.

American religious neutrality has over time become more vague as America has become more religiously diverse, so that today (with the exception of a few grandfathered practices) the state may not even affirm the existence of God.  This kind of neutrality is not the kind of neutrality toward all conceptions of the good that many liberal political theorists have advocated, but it is the best response to the enormous variety of religious views in modern America.  It is faithful to the belief, held by the leading framers of the First Amendment, that religion can be corrupted by state support.

Defending American Religious Neutrality offers new answers to three questions:  What conception of neutrality is relied on in the interpretation of the Establishment Clause of the First Amendment?  Is it coherent?  Is it defensible?

     The First Amendment of the United States Constitution says “Congress shall make no law respecting an establishment of religion, or abridging the free exercise thereof.”  The interpretation of this provision has been controversial for a long time, and indeed may be ripe for revolution.  A growing number of writers, including several Supreme Court Justices, have argued that religion clause doctrine is both incoherent and substantively unattractive.  They propose to replace it with a new set of rules that are far friendlier to official endorsement of religion.

     If these proposals are adopted, the result would be heightened civil strife, corruption of religion, and oppression of religious minorities.  One proposal, for example, is to permit states to endorse general principles of Abrahamic monotheism.  Official religious pronouncements not only brand as outsiders anyone whose beliefs do not conform to the official line; they tend to produce religion of a peculiarly degraded sort.  If the state gets to discern God’s will, we will be told that God wants the reelection of the incumbent administration.  Another proposal is that religious activities should be eligible for direct funding so long as there is a plausible secular reason for doing so.  Such funding for religious entities, particularly when those entities are relied on to provide public services such as education, aid to the homeless, prison rehabilitation, or drug treatment, can easily lead to a situation where the only option is a religious one, and people are bullied into religious activities.  The most radical proposal would discard the requirement that every law have a secular purpose.  Some religious justification is available for nearly anything that the state wants to do to anyone.  Permitting such justifications would devastate many constitutional protections that have nothing to do with religion.

And this exorbitant price will have been paid for nothing. Present doctrine already allows for what the doctrine’s critics most value: state recognition of the distinctive value of religion. The law treats religion as something special in a broad range of legislative and judicial actions. What the state may not do—what the doctrine properly forbids it to do—is declare any particular religious doctrine to be the true one, or enact laws that clearly imply such a declaration of religious truth.

     There is, indisputably, a deep coherence problem in First Amendment law.  The Court has interpreted the First Amendment to mean that “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”  But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.”

          Accommodation of religion as such is permissible.  Quakers’ and Mennonites’ objections to participation in war have been accommodated since Colonial times.  Other such claims are legion.  Persons whose religions place special value on the ritual consumption of peyote or marijuana (or wine, during Prohibition) seek exemption from drug laws.  Landlords who have religious objections to renting to unmarried or homosexual couples want to be excused from antidiscrimination laws.  Churches seeking to expand sometimes want exemption from zoning or landmark laws.  The Catholic church wants to discriminate against women when ordaining priests.  Jewish and Muslim prisoners ask for Kosher or halal food.  These scruples have often been deferred to, and religious objectors have frequently been exempted from obligations that the law imposes on all others.

          There is considerable dispute about whether the decision when to accommodate ought to be one for legislatures or courts, but that debate rests on the assumption, common to both sides, that someone should make such accommodations.The sentiment in favor of such accommodations is nearly unanimous in the United States.  When Congress enacted the Religious Freedom Restoration Act (RFRA), which attempted to require states to grant such exemptions, the bill passed unanimously in the House and drew only three opposing votes in the Senate.  After the Supreme Court struck down the Act as exceeding Congress’s powers, many states passed their own laws to the same effect.  Many of those opposed to judicially administered accommodations, such as Supreme Court Justice Antonin Scalia, think that it is appropriate for such accommodations to be crafted by legislatures. 

   Each of these measures raises the same dilemma.  If government must be neutral toward religion, then how can this kind of special treatment be permissible? 

It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as in tension with itself.  Call this the free exercise/establishment dilemma.

This apparent tension can be resolved in the following way.  Begin with an axiom: The Establishment Clause forbids the state from declaring religious truth.  A number of considerations support this requirement that the government keep its hands off religious doctrine.  One reason why it is so forbidden is because the state is incompetent to determine the nature of this truth.  Another, a bitter lesson of the history that produced the Establishment Clause, is that the use of state power to resolve religious controversies is terribly divisive and does not really resolve anything.  State involvement in religious matters has tended to oppress religious minorities.  Finally, there is a consideration that is now frequently overlooked, but which powerfully influenced both the framers and the Justices who shaped modern Establishment Clause doctrine:  the idea that establishment tends to corrupt religion.

These considerations mandate a kind of neutrality.  The state may not favor one religion over another.  It also may not take a position on contested theological propositions.

     It is, however, possible, without declaring religious truth, for the state to favor religion at a very abstract level.  The key to understanding the coherence of First Amendment religion doctrine is to grasp the specific, vaguely delimited level of abstraction at which “religion” is understood.

     What in fact unites such disparate worldviews as Christianity, Buddhism, and Hinduism is a well-established and well-understood semantic practice of using the term “religion” to signify them and relevantly analogous beliefs and practices.  Efforts to distill this practice into a definition have been unavailing.  But the common understanding of how to use the word has turned out to be all that is needed.  Courts almost never have any difficulty in determining whether something is a religion or not. 

The list of reported cases that have had to determine a definition of “religion” is a remarkably short one.  The reference I rely on here, Words and Phrases, is one of the standard works of American legal research, a 132 volume set collecting brief annotations of cases from 1658 to the present.  Each case discusses the contested definition of a word whose meaning determines rights, duties, obligations, and liabilities of the parties.  Some words have received an enormous amount of attention from the courts.  Two examples, Abandonment and Abuse of Discretion, drawn at random from the first volume of this immense compilation, each exceed 100 pages.  Religion, on the other hand, takes up less than five pages.  The question of what “religion” means is theoretically intractable but, as a practical matter, barely relevant.  We know it when we see it.  And when we see it, we treat it as something good.

     American religious neutrality is studiedly vague about the good that it is promoting, and this may be a source of frustration to its admirers.  But there is wisdom in this vagueness.  Citizens do need to share an understanding of what is valuable. But when the details of this particular Valuable Something are so hotly disputed, the most effective way for the government to pay it reverence is just to shut up about it.


Posted by Paul Horwitz on December 21, 2012 at 09:14 AM in Books, Paul Horwitz | Permalink


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Re: “But when the details of this particular Valuable Something are so hotly disputed, the most effective way for the government to pay it reverence is just to shut up about it.”

Is not this not an instance of what Stephen Holmes referred to not so long ago as part of the argument for “gag rules,” the “politics of omission,” or strategic self-censorship in his contribution to the volume edited by Jon Elster and Rune Slagstad, Constitutionalism and Democracy (Cambridge University Press, 1988)? Holmes cites myriad examples from all sorts of social settings, but from the law he uses the example of nonjusticiability doctrines that

“enable the Court to silences itself about difficult legal issues. The ‘political questions’ doctrine, as well as ‘case and controversy,’ ‘ripeness,’ and ‘standing,’ are all ‘devices for deciding not to decide,’ strategies by which members of the Court limit the range of problems on which they are required to pronounce.”

Holmes also cites Rawls, who attempted to flesh out notions of equality and liberty relying on notions of personhood he believed purged of metaphysical assumptions or premises of Kantian vintage (in the form of noumenal selves, transcendentalism, or rational intuition), hence the original Kantian conception of moral persons as free and equal becomes, in Rawls’s version of “Kantian constructivism,” a conception in the first instance political, not metaphysical, located in the public culture of “our” democratic society (or, more generously, as intrinsic to a ‘liberal’ political culture). The motivation for this reduction, as it were, is owing to Rawls’s belief in the controversial nature of the original Kantian metaphysical model used to flesh out the ideal of moral persons both free and equal. Rawls is attempting to satisfy the conditions of a Principle of Liberal Legitimacy (see Gerald F. Gaus) by restricting the set of beliefs or considerations to which we appeal to the set of those beliefs commonly shared (which of course goes against the grain of Liberal pluralism), beliefs which may be derived from or compatible with our comprehensive doctrines or worldviews. Irresolvable disputes and problems owing to our fidelity to comprehensive doctrines qua comprehensive doctrines, which Rawls attempts to avoid while not dismissing their possible role as the source from which a minimal set of shared beliefs may arise or be endorsed:

“[R]easonable comprehensive doctrines, religious or non-religious, may be introduced in public discussion at any time, provided that in due course, proper political reason—and not reasons given solely by comprehensive doctrines—are presented that are sufficient to support whatever the comprehensive doctrines are said to support.”

One might recall here the role of comprehensive doctrines, especially some religious worldviews, in the articulation and support of human rights norms.

We need not go into the virtues and difficulties associated with Rawls’s notion of public reason, and I agree with Gaus (who proffers his own resolution) that its principal attraction is owing to its sophisticated attempt to articulate a post-Enlightenment Liberalism that “recognizes both [reasonable and intractable] plurality while endeavoring to develop a substantive theory of public reason.”

To return to Holmes, he goes so far as to contend that, “like ‘self-binding’ in general, tongue-tying may be one of constitutionalism’s main gifts to democracy.” Holmes responds, we might imagine, to a Catholic legal theorist who views this approach as leading to the privatization of religion, effectively erasing certain questions or topics from the list of problems to be publicly debated or resolved:

“Issue-suppression sounds tyrannical: to gag is to choke. But self-denial may be indispensable in self-regulating politics. For one thing conflict resolution often presupposes conflict-avoidance. Democracy becomes possible, according to many democratic theorists, only when certain emotionally charged solidarities and commitments are displaced from the political realm. [….] To repeat, by agreeing to privatize religion, a divided citizenry can enable itself to resolve its OTHER differences rationally, by means of public debate and compromise. [….] The initial willingness of rival factions to compromise on a constitutional framework is usually motivated by battle fatigue and a yearning for the fruits of peaceful cooperation. But all parties must be assured that ‘ultimate values’—the things they care most about—will not be dragged through the mud of contestation.”

I’ve yet to read the book, but Koppelman’s argument at first glance strikes me as possibly more nuanced than Holmes’s with regard to the question of the “privatization” of religion and issue-suppression in as much as “vagueness” is not intentional, deliberate, or a de jure form of strategic self-censorship, allowing respect and a public role for comprehensive doctrines while avoiding unnecessary entanglement in all the features of such doctrines that play themselves out in individuated lifeworlds and sectarian doctrines that define themselves by way of (what are often, in the end or the great scheme of things, the narcissism of small) differences with “the Other.”

Posted by: Patrick S. O'Donnell | Dec 21, 2012 11:09:54 AM

The Koppelman intro is sadly lacking in both grammar and good sense.

As for grammar, he makes the same mistake that Eugene Volokh loves to make, namely confusing "prohibit from" and "forbid to." His sentence

“The Establishment Clause forbids the state from declaring religious truth”

should of course read

“The Establishment Clause forbids the state to declare religious truth.”


“One reason why it is so forbidden is because the state is incompetent to determine the nature of this truth”

should have the “reason...is because” edited out.

As far as good sense is concerned, Koppelman should at least mention that the history of Western Civilization is replete with wars waged in the name of religion---indeed, in Ireland and the Balkans until most recently. I haven’t heard of a war waged in the name of Humanism. Indeed, wars of religion were probably what led Gandhi, when asked what he thought of Western Civilization, to reply, “I think it would be a good idea.”

He speaks of the historical accommodation of the religion of Quakers and Mennonites, kosher and halal, without pointing out that Humanist and Atheist views have not been so accommodated, and many “non-religious” young men were forced to serve prison terms for refusing to fight in our country’s wars of aggression, like the Vietnam War. Hell, you still cannot find Humanist or Atheist chaplains in our military, hospitals or prisons. Indeed, to qualify as a chaplain, you have to have studied in seminary for 3 years and been ordained by a religious group. What’s that all about? --- even Sigmund Freud, Alfred Adler, Milton Erickson and Abraham Maslow would have been barred from chaplaincy.

And he gets even sillier:

“Courts almost never have any difficulty in determining whether something is a religion or not.” Right, like Billy Graham almost never has difficulty in determining who’s going straight to hell or not. It is the very lack of sophistication of the courts in matters of religion that grants them the ease of such pronouncements, and there is little hope that our current SCOTUS of six Roman Catholics and three Jews will gain a decent understanding. In addition to being studiously ignorant of math, science and economics, they lack sophistication in religious philosophy.

Posted by: Jimbino | Dec 21, 2012 11:46:52 AM

"The other, whom I’ll call the religious traditionalists, think that any claim of neutrality is a fraud, and that law necessarily involves some substantive commitments. They claim that there is thus nothing wrong with frank state endorsement of religious propositions".

For example: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Silly religious traditionalists? Who do they think they are?

Posted by: A6 | Dec 21, 2012 10:30:12 PM

This is just a backdoor argument that the State should favor 'religion' in the abstract as some kind of social good worthy of respect. Once that argument is made, the door will be open for each religion to be saved in the particular - catholic charities, Jewish this, Muslim that, etc.

What century is this? Why so much effort and hair-splitting just to save religion?

Can't we - in the 21st century and in the midst of an alleged holy war with zealots - finally realize that religion has no place in the State, just as the State should not favor Astrology or Witchcraft or Divination.

Freud was right: believers will use every rear-guard maneuver to open the door a crack for their religion.

Just get religion out of government: no tax deductions, no special health care exceptions, no special diets for prisoners, no wearing veils on drivers licenses, take God off the dollar bill, change Xmas to "Winter Break" etc. Simply tell people to grow up and accept that their religion is private nonsense that has ZERO right to public support. What they want to believe in their private space is fine so long as they don't hurt strangers and don't ask anything from the government.

Posted by: Atheist | Dec 27, 2012 2:35:48 PM

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