April 10, 2010

Justice Stevens was not inconsistent in his interpretation of the Constitution's religion clauses.

J. Brent Walker writes (in WaPo):
Justice Stevens has been a friend of church-state separation. His Establishment Clause jurisprudence has always been strong. He has uniformly stood against government-sponsored religious speech and endorsement of religion. He has been just as critical of attempts on the part of government to fund religious organizations and activities.

However, his willingness to require (or sometimes even to permit) the accommodation of religion under the First Amendment's Free Exercise Clause has been lacking. He joined the Court's conservatives in Employment Division v. Smith, the Native American peyote case, which gutted the Free Exercise Clause of its robust religious liberty protection for all Americans, not just Native Americans. 
"However" is the wrong transition. "Accordingly" or "by the same token" would be appropriate. A strong position on the separation of church and state, at its most consistent, leads to the idea that neutral, generally applicable laws do not violate the the Free Exercise Clause. Smith validated uniform laws as they are applied to everyone, with no exceptions required.

Here's Justice Stevens, in a concurring opinion, in Boerne v. Flores, in a case in which a church in an historic district wanted to enlarge its building:
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that [the Religious Freedom Restoration Act] gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.
The Religious Freedom Restoration Act, Congress's response to Smith, was an attempt to create by statute what the Court had rejected as a constitutional requirement: exemptions from neutral, generally applicable laws that burden religion. Stevens, alone of all the Justices, thought that RFRA violated the Establishment Clause.

Do you think government should be able to give religious persons and groups "a legal weapon that no atheist or agnostic can obtain"? Do you think it's conservative or liberal to say no, as Justice Stevens did?

Walker dings Stevens for "join[ing]  the Court's conservatives" in Smith, but Justice White was also on that side, and Justice O'Connor was on the other side.  Walker seems to think that he's bolstering his position on the Free Exercise Clause by associating it with conservatives, and it probably is safe to assume most Washington Post readers think like that. But with the religion clauses, it's not so easy. If you're a liberal who cares deeply about the separation of church and state, why would you favor religion-based exceptions to laws that otherwise apply uniformly?

19 comments:

former law student said...
This comment has been removed by the author.
GMay said...

Do you think government should be able to give religious persons and groups "a legal weapon that no atheist or agnostic can obtain"?

No.

"Do you think it's conservative or liberal to say no, as Justice Stevens did?"

Neither. But then I try not to get bipolar with the political spectrum. I consider myself somewhat conservative, but I'm also agnostic.

Brian Day said...

I've always thought it strange that the concept of separation of church and state, as applied to the establishment clause is almost universally interpreted as "freedom from religion".
In its most basic form, the establishment clause means there can be no official state (at the federal level) church. I don't see anything that prevents the federal government from being friendly to religion.

Of course IANAL, so YMMV.

WV: reede - something I need to more of.

Brian Day said...

Do you think government should be able to give religious persons and groups "a legal weapon that no atheist or agnostic can obtain"?

Why not? The court does all the time on the secular side. Just think of Kelo. So let's rephrase the question:
Do you think government should be able to give developers and groups "a legal weapon that no ordinary citizen can obtain"?

Sauce: goose, gander?

Bruce said...

Re: FormerLawStudent

"Look at disparate impact. Let us say the FDA decides to ban gluten-containing food to prevent harm to unsuspecting sufferers from celiac sprue. As a result, communion wafers are banned. How are Christians to commemorate Christ's sacrifice on the Cross without communion wafers?"

In the hypothetical, how are why is the Christians' desire for exemption from the law more legitimate than non-religious people who want exemption from the law? The non-religious peoples' desire for something containing gluten is just as real and important to them.

Basically your hypothetical depends on government taking seriously the wants of religious people, and not taking seriously the wants of the non-religious - which is precisely what the government should avoid if we have seperation of church and state.

former law student said...

In the hypothetical, how are why is the Christians' desire for exemption from the law more legitimate than non-religious people who want exemption from the law?

The Christians were commanded by their Lord to "Do this, in memory of Me." Taking communion is important to their eternal life. Can non-religious people say the same about being denied Wheat Thins?

Big Mike said...

If you're a liberal who cares deeply about the separation of church and state, why would you favor religion-based exceptions to laws that otherwise apply uniformly?

Professor, I reject your assumption. From my disinterested position as an atheist I assert that mainstream liberals don't care about separation of church and state -- they delight in using the Constitution to beat up on Christians. How would the court have ruled in Boerne if it had been a synagogue or mosque that was forbidden to enlarge itself to accommodate more worshipers? I think I know the answer.

Big Mike said...

@FLS, I really respect your analyses posted at 10:35 and just above. Maybe you're not so bad after all.

reader_iam said...

I don't like bans and generally disapprove of them. So I'm in no way defending the idea of banning gluten-containing wafters. I simply want to note that gluten-free wafers do exist. They have to be kept separate ("they," meaning the wafers, not "they," meaning communicants) and celebrants and LEM-types have to be [willing to be] cognizant, but they exist, and there are indeed congregations who voluntarily make that accommodation.

(I realize that's not the point, but a lot of people don't know that there are such things as gluten-free wafers, so I wanted merely to mention it: no belaboring ahead.)

reader_iam said...

I do see, however, that apparently the Vatican has said communion wafers must contain gluten? So the other option wouldn't work in that case, of course.

Never mind.

reader_iam said...

Great. Now I'm interested in a whole new topic, but one that's a digression from this one. So I'll go and research and trouble everyone no more on this thread. : )

buster said...

Bruce said:

"In the hypothetical, how are why is the Christians' desire for exemption from the law more legitimate than non-religious people who want exemption from the law?"

Because the First Amendment has a "free exercise of religion" clause?

David said...

"why would you favor religion-based exceptions to laws that otherwise apply uniformly?"

Because you can't think your way through a half open door.

Greg Marquez said...

The problem with separation of church and state, or establishment clause, issues is, obviously, the definition of religion.

So long as you can keep your religion from being defined as a religion you can gain a competitive advantage over your religious competitors. By avoiding being defined as a religion you avoid the restrictions placed on your "religious" competitors and are able to enjoy the benefits, governmental subsidy, inclusion in school curriculum etc., which your competitors are barred from receiving.

The legal doctrine of separation of church and state is really nothing more than a barrier to competition which protects "secular" "modernist" religion from competition with traditional religions.

And It turns out that secular religion just happens to be the preferred religion of the elites who invented the doctrine of separation of church and state. And like all true believers, the adherents of the all new, all modern, scientifically established, secular religion, are absolutely certain that their religion is the real, final, scientifically established truth, and that it is so unlike the irrational, violent, homophobic, intolerant religions of their competitors, as to not even qualify as a religion at all.

That is, to a large extent, what the culture wars are all about, the legal definition of religion.

The elites do realize, don't they, that these are the same arguments which new religions always make against their established competitors?

Greg Marquez
MarquezGoyo@Gmail.com
www.IVChristianCenter.com

Saint Croix said...

If you're a liberal who cares deeply about the separation of church and state, why would you favor religion-based exceptions to laws that otherwise apply uniformly?

Well, for starters a Justice is supposed to be following the Constitution that belongs to all of us. I reject the cynical argument that once a liberal goes up there he can do whatever he cares about. Too many frickin' liberals feel that way.

The religion clauses are important. They are the first thing in the First Amendment. Free speech is an afterthought. So put that in your peyote pipe and smoke it. And then go to jail, you secularist ninny. Cause you don't get to ingest peyote, you don't get to ingest peyote.

Religion is singled out for special protection. As long as you are following your religion, you have a Constitutional right to do that. Which means they can ingest peyote. Theoretically they can throw virgins into volcanos too.

The open-ended aspect of free exercise scares the crap out of right-wingers, so they basically eviscerated the free exercise clause. It doesn't exist any more. Just cross it out and pretend like it's free speech.

Stevens, on the other hand, is totally cool with hippy-dippy loose language, like "substantive" due process. He's like Brennan, like Marshall, like Blackmun, like Douglas. That's why it's notable that he crossed out the free exercise clause along with the conservatives. Not because he's scared of big words and open-ended provisions (he's not), but because he's scared of religion specifically. He abandoned his free and easy jurisprudence to narrow a provision to reach an anti-religion result that made him happy. He's a little frickin' dictator in a stupid bow tie.

former law student said...

He's a little frickin' dictator in a stupid bow tie.

Does Scalia wear a bowtie?

Because he's the one who downgraded the Free Exercise clause, in ED v. Smith.

pduggie said...

I don't really know much about Boerne v. Flores, but it seems to me that if the building that became historic is historic because it is what some people built to practice their religion in, that their desires to practice their religion in it in a different way than previously shouldn't be gainsaid.

Say a church has an mini-iconoclasm controversy, and decides the big statue they built outside was against God's will, and think it should be torn down. Why can the state say they can't?

Ann Althouse said...

@pduggie The question assumes the state can regulate an activity, like designate a neighborhood as historic. Then, can the religious group/individual avoid the general rule. The church in Boerne was in a landmark district where there were rules that applied to everyone else, and it sought special treatment because of religion.

former law student said...

The church in Boerne was in a landmark district where there were rules that applied to everyone else, and it sought special treatment because of religion.

The professor believes that the separation of church and state is a one-way valve, with the state free to interfere with the operation of the church but not vice versa. The physical structure in Boerne was designed to hold worshippers -- as the number of worshippers increased logically the church would be enlarged to hold them. But the aesthetic principle of maintaining a neighborhood as it looked in 1923 trumped logic.

When a congregation outgrows its structure and cannot enlarge it, it will leave it. Who benefits then? There are beautiful, historically significant, abandoned churches all over this country.