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Monday, October 17, 2011

Smith on "Freedom of Religion or Freedom of the Church?"

As Paul mentioned, the other day, one of the papers that was presented at the (excellent) "Matters of Faith" conference at Alabama was Steve Smith's Freedom of Religion or Freedom of the Church?  You can get a version of the paper on SSRN (here).  Here is the abstract:

This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church - both the institutional church and the inner church - came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.

My first reaction to this (as per usual, for Steve) fascinating paper, and to Steve's presentation at Alabama, was "crap.  What's left for me to say, for the 30 years or so until I retire?  Time to re-tool as a Third Amendment scholar . . ."  Thinking about it more, at the conference and on the plane home, I asked myself what the implications for judicial doctrine and practice would be, were the First Amendment to be understood (as I think I think it should be) along the lines Steve suggests.  Three come to mind: 

First, the Religion Clauses -- specifically, the "secular purpose" requirement -- would no longer have a job to do in identifying the constitutional limits on morals legislation.  There are, certainly, such limits, and should be, but the enterprise of finding them would not involve trying to identify and categorize as either "religious" or "secular" the purposes or motives that were thought to produce that legislation.

Second, the Supreme Court's Smith decision would be, pretty much, right, at least when it comes to exemptions for religiously motivated conduct from otherwise religion-neutral and (truly) generally applicable laws.

Third, the project of evaluating symbolic expression by governments and public officials would be taken from "endorsement test"-wielding judges and given to citizens, acting in and through politics, and (I hope) taking seriously the demands of civic friendship, and plain old common decency, in a diverse political community.

Anyway, check out the paper.

Posted by Rick Garnett on October 17, 2011 at 02:19 PM in Rick Garnett | Permalink


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