Disestablishment Deontology

Wow, two big “d” words.  I’m in the middle weeks of my law and religion seminar, and as such have just revisited a paper I wrote what seems like “forever” ago—even though it was really only in 2006—and cringed at much of what I found there.  Such, perhaps, is the life and learning curve of the assistant professor. (Perhaps this phenomenon itself is worthy of a post!)  But, despite its many shortcomings, there is (I think) the kernel of something interesting in the old piece, and I thought maybe I’d run a brief (and somewhat revised) version up this flagpole.

 

The problem I was trying to get at was what I see as the confused and confusing state of Establishment Clause jurisprudence, and I hoped to better understand things by getting back to the structural rationale underlying what Steven D. Smith has called the “disestablishment decision.”  Smith has taken on this project himself in a number of different ways, and I find his position Separation and the Secular (67 Tex L Rev 955) to be particularly persuasive. 

 

 Basically, he argues that, somewhere in the 20^th century, we abandoned the original “separation” understanding of disestablishment in favor of our current “secular state” conception.  The former requires (only) that: (1) the state stay out of the internal business of churches, and (2) the church not assume any of the powers or authority of the state.  The latter seems to require that we maintain the appearance of a “secular” state.  Smith does an excellent job of demonstrating how the “secular” construction runs us headlong into various conflicts, inconsistencies, legal fictions, and problematic judicial talk about what does or doesn’t advance religion.  The “separation” construction, by contrast, dissolves many of the conflicts and promises to render a more consistent and intelligible doctrine moving forward.   As excellent as Smith’s account is, it rests primarily on instrumental or consequentalist justifications—that is, its value lies in the likelihood that it will produce good doctrinal results (in terms of coherence, consistency, etc).  As such it left my deontological desires feeling a little unfulfilled, and so I wanted to come up with something that might, by happy coincidence, produce a more intelligible body of doctrine, but which was primarily a duty-based—but not theological—account of the disestablishment structure. 

 

The fundamental problem, I argued, lies in two sometimes divergent commitments underlying the American democratic vision—one instrumental and the other deontological.  First, we have an instrumental commitment to a government that maintains peace/order, protects us from the Hobbesian state of nature etc, and does so based on our participation in the processes of decision.  Second, we have a deontological commitment to individual autonomy; to a system that allows us to make our own moral choices and act on them for their own sake.    One divergence between these commitments arises when—left to identify and act (or not) on my moral duties—I end up doing something that threatens peace/order, etc.  Another divergence may arise when I fail to identify or act upon the duty to participate in the processes of decision that make democratic government possible.  Put another, perhaps simpler, way, our democracy has a deontological commitment not to coerce some of the actions upon which it depends for its existence and success.

 

I expressed the deontological part of this (in language I now regret) in terms of “dialectic of virtue” that was supposed to express sort of a classic Kantian view of moral agency: we can only truly fulfill a moral duty as of an act of free will.   So, to create the possibility of authentic moral agency (to treat people as ends) government must protect our freedom to choose whether to identify or act upon moral duties; but, to ensure some kind of normative order, we also need to have people choose well.  I concluded that the divergence (or dialectic) was such that government could not solve the problem on its own; democratic success, I argued, depends upon extra-governmental forces.  In short, I argued that at least one strand of disestablishment thinkers (call them the “civic republicans”) thought the normative, “choosing well” part of the dialectic must be left, or entrusted, to religion or God.  Thus the structural logic of disestablishment was that it kept the government in the “freedom of choice” business and out of the “choosing well” business.  But, as the fear of God has perhaps waned as a normative force (or at least presents a more diverse normative face), we have had to replace it with something less theological in order to keep the structure working.  I argued that we have filled in the gap with various “social institutions” (family, teams, charities, churches, etc.).  Thus, the current structure sees “state institutions” devoted to protecting the freedom to choose, and “social institutions” helping us to choose well.  The constitutional trick then—and it’s a big trick—is differentiating between the two kinds of institutions, and I suggest that this explains why the borderline cases (read, “schools”) arouse so much controversy.

 

Ultimately, I do think this account might provide the basis for a more consistent and coherent Establishment Clause doctrine, but really I would be happy if it comes across as a somewhat coherent explanation of the deontological (again, not theological) commitment underlying the disestablishment decision.