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The Religion Muddle

August 4, 2005 10:04 AM

On this case I have to protest the way in which Steve has framed the overall issue of religion under the First Amendment. He has packed so many trenchant observations into a few paragraphs that it is impossible to answer them all within the space allotted for these instant blogs. So I shall have to content myself with a few observations as to how I have come to think about the issue.

Let�s start with a point that Steve rightly mentioned at the end of his blog. The doctrine of incorporation, which is dubious in lots of ways in connection with other clauses of the Constitution, makes little sense with religion. As Steve notes, the clause here is directed toward Congress: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first part of this clause at least, though perhaps not the second, does not lend itself to incorporation at all. It reads as though the Congress has to keep out of this issue because it is for the states, many of which had established churches, to decide whether to erect a wall of separation between church and state, or to build a party wall that allows them to cooperate with each other. If the prohibition on Congress was intended to give the states more running room, then it is odd for incorporation to completely strip the states of that power.

But by the same token, it seems odd to think that the states should have the power to prohibit the free exercise of religion, or that the Constitution was intended to give them more running room on that. The simplest view perhaps was that state protection of liberties, which are consistent with the establishment of religion, was intended to prevent those forms of abuse. Needless to say, as a libertarian of sorts (my new official designation) I am unhappy with the extensive power that states have to deal in religion, and think that prohibitions on the free exercise of religion (save for those which represent an abuse of freedom, i.e. the use of force and fraud) are again inappropriate. I am also unhappy with transfer from religious to nonreligious persons or the reverse. In the end, it is hard to think that nonbelievers should be taxed for all believers, as Steve suggests might have worked in 1789. With incorporation, the old views have to change. So it looks as though I am a separationist of sorts.

But, now that the establishment clause does apply, I believe that in the end, the separationist position is subject to some serious problems that bring us back to the same structural questions that we discussed in connection with affirmative action. I have no question that the state has to hold back when it wishes to interfere with the private practice of religion as a regulator. But in those cases where it runs particular institutions, it should have some discretion as to how those operations take place. So if public schools are a given, then I would want the schools to have discretion in deciding who should be their speakers. In private schools, the common practice is one of rotation, in a spirit of amity, and I am duly troubled when a single student (or his or her parents) can put the kibosh on a system of rotation that all different groups are willing to accept. It strikes me as the rule of one over the rule of the majority. So, as with affirmative action, I would accept in public institutions those practices that are adopted by private ones. The entanglement test, to the extent that it points the other way, is a large mistake.

But there is then the question of public displays of religious objects. Here I am more sympathetic than most to the Breyer view that long usage on outside places is all right but new insertions into court houses is not. The former is consistent with the system of rotation used for speakers. The latter suggests a bold insinuation of dominance for a particular group. State monopolies don�t square with my general views.

Lastly on funding, the key point to remember is that religious individuals are taxed for secular schools that they may not use, and to whose teachings they are opposed. So here the refusal to allow them to participate in even terms with secular schools works a transfer of wealth from religious to nonreligious purposes, which counts as a burden that starts to look like a restriction on the free exercise of religion. So once again, I am nervous about a rule that allows for transfers in one direction. Frankly, I don�t care much for how the particular dollars are spent, since they are largely fungible. My goal is to make sure that religious schools share equally with nonreligious schools in ventures over which they were taxed. The problem here is that there is so much implicit redistribution through taxation that it is hard to isolate those for special scrutiny under the religion clauses. Just another issue that gives this area its charm, for all persons, regardless of their religious backgrounds.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.