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Friday, May 08, 2009

Review Essay Review: Abner Greene on Religion Clause Theorists

Via Larry Solum, I saw this review essay by Abner Greene on the recent work of Martha Nussbaum, Christopher Eisgruber and Lawrence Sager, and Brian Barry (though Barry's work is, for Greene, not so much an object of review as an egalitarian counterpoint to the approaches of the other two).  The piece is extremely interesting and a marvelous read, incorporating some of Greene's wonderful past work on reductionism.   

All three of the theorists under consideration make a certain type of move with respect to the religion clauses -- they claim that the protections afforded by the religion clauses are ultimately reducible to protecting the value of equality, and whatever other values are implicated are secondary.  That is, they reduce religious liberty to a single value, equality, and so the religion clauses end up being about that value more than anything that they themselves might denote -- i.e., "religion."  In one portion of the review essay, Professor Greene confronts directly the question whether reductionism of this kind is ever warranted in constitutional interpretation: '[w]hen, if ever, should we reduce specifically stated constitutional protections to their underlying values, and in so doing, alter the coverage of those protections from their explicit scope?"  What can be said for reductionism?  What can be said against it?

Part II of Greene's piece discusses reduction in constitutional theory generally.  He writes that in no other area of constitutional law are the protections afforded by the text reduced to values.  It is certainly true that whether speech, to take one example, is protected will depend on the values of the free speech clause underwriting the protection.  But there is an important difference between saying, on the one hand, that we protect speech and, on the other, that we protect the values underwriting the protection of speech.  And the same goes, Greene says, for other constitutional protections -- the takings clause, for example, or the right of assembly.  In the case of unenumerated rights, it is the case that a value or a set of values has generated specific protections (from "privacy" are derived contraception and abortion, for example) but the religion clauses, unlike the due process clause, actually contain a "textual hook," and it seems strange to ignore the hook when it actually exists (as opposed to conjuring hooks when they don't).

Greene then makes the claim, drawing from Bruce Ackerman, that "the best" argument for reductionism in religion clause theory is that the Equal Protection Clause "changes everything," in that when the religion clauses are read in conjunction with the EP Clause, we get something new and different than what the religion clauses meant at the founding -- something "synthesized."  Notwithstanding that synthesis, Greene continues, it still remains unclear which conception of equality ought to be the one that is synthesized with religious liberty.

The remainder of Greene's piece is a discussion of the different conceptions of equality represented in the approach of the three sets of scholars under review.  Barry's approach is that of formal equality (it may be the type of approach favored by contemporary scholars like Marci Hamilton, for example), E&S's approach is an equality that questions the distinctiveness of the category "religion," and Nussbaum's is an equality that recognizes religion's distinctiveness by defining it in extremely broad terms as "conscience" -- as a capability (or, perhaps, sub-capability) within her capabilities theory framework.

As the essay proceeds, Greene finds more to agree with in Nussbaum's approach than in the other two, but it also seems clear that he is all-in-all persuaded by the centrality that each approach gives to equality for the religion clauses.  Greene makes many interesting points about the strengths and weaknesses of the various approaches, but I want to set those to the side.

Instead, I want to ask a question that assumes that the reductionist egalitarian project is a good one.  Greene seems to say that it is; I am less certain, but that is for another day.  But even if it is true that the religion clauses ought to be reduced to an egalitarian value of some kind or another, why is it not better to say that we cannot be sure which one it ought to be?  For some circumstances -- in some places and in some times -- the pull of the formalist egalitarian view of Barry will be strong.  It will be the appealing view not because it is always the best egalitarian view, but because the circumstances will be such that the formalistic view will suit the circumstances of conflict best.  And the same might be said for each of the other egalitarian views as well.  In some cases, Nussbaum's "fear of strangers" equal respect egalitarianism will win the day.  But what if there is actually something that ought legitimately to be feared, or controlled by the state?  Why ought not the formalist egalitarian nose ahead in those circumstances?  This really boils down to a methodological concern: why should we want to predict which egalitarianism is (always, invariably) trumps ex ante?  Why shouldn't we instead recognize the (true, real) conflicts within equality -- ones that we actually experience in the event -- as themselves generating the competing theories of equality? 

It is just this sort of view, of the deep conflicts internal to a single value, with which Greene closes the piece: "Although I am generally sympathetic to the Nussbaum view of equality regarding religious liberty, I find much to admire about Barry's approach to the child-parent-state issues, which must be part of any discussion of religious liberty."  

Posted by Marc DeGirolami on May 8, 2009 at 04:04 PM | Permalink

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