RELIGIOUS LIBERTY

William B. Eerdmans Publishing Company

Contents

Foreword, by John Witte, Jr.............................................................................................................xiiiPreface to the Collected Works..........................................................................................................xviPreface to Volume 1.....................................................................................................................xxiiiA. Normative Overviews..................................................................................................................1B. Analytic and Descriptive Overviews...................................................................................................270C. Book Reviews.........................................................................................................................463D. Judicial Nominations.................................................................................................................486PART TWO: HISTORY.......................................................................................................................525Appendix I "God Alone Is Lord of the Conscience": Policy Statement and Recommendations Regarding Religious Liberty.....................761Appendix II Reading Legal Citations for Nonlegal Readers...............................................................................813Index...................................................................................................................................827

Chapter One

A. Normative Overviews

Four of the eight articles in this Section are major scholarly works; they set out the basic principles that underlie all my work in the field. There are also four short pieces here, three written for scholarly outlets and one for law school alumni.

The Long ...

Formal, Substantive, and Disaggregated Neutrality toward Religion (1990) was the first clear development of the distinction between formal and substantive neutrality. That distinction, and that vocabulary, is now widely used in the academic community. Both conceptions of neutrality appear in Supreme Court cases, but without the vocabulary and rarely with any attention to the difference. Substantive neutrality was and is an attempt to reconcile the lawyer's instinct for neutrality with a robust conception of religious liberty, and to escape the implication that neutrality requires that churches be regulated to the same extent as commercial businesses.

Substantive Neutrality Revisited (2007) is a more mature elaboration of the same distinction, written nearly two decades later, responding to some of the ways in which substantive neutrality had been criticized or misunderstood. This article also provided an occasion to compare my approach with those of the centrist Noah Feldman at Harvard and the strict separationist Steven Gey at Florida State.

Religious Liberty as Liberty (1996) attempts to set out a religion-neutral case for religious liberty. We protect religious liberty not because religion is a good thing or a bad thing, but because individual liberty with respect to religious choices and commitments is a good thing. This piece also contains my most complete elaboration of why nonbelievers should be protected by the Religion Clauses.

Theology Scholarships, the Pledge of Allegiance, and Religious Liberty (2004) is organized around two Supreme Court decisions in 2004. The Court held that Washington does not have to provide state scholarships to theology majors, and it ducked on the constitutionality of "under God" in the Pledge of Allegiance. This article places those decisions in larger context and uses them to survey the whole field, although of course the most detailed attention is devoted to the bodies of law that most directly controlled those two cases.

... and the Short

Religious Liberty: Not for Religion or against Religion, but for Individual Choice (2004) is a 1,000-word summary of the themes in the larger pieces. There is not much detail or nuance, but if you want a five-minute introduction to what I think, this is the place to start.

Remarks on Acceptance of National Award from the Council for America's First Freedom (2009) is even shorter and draws the moral more pointedly. We must protect the religious liberty of those we disagree with as vigorously as we would protect religious liberty for ourselves.

Free Exercise Clause and Establishment Clause: General Theories (2000) is a brief summary of all the important competing theories of the Religion Clauses. They say you can't tell the players without a scorecard; this short encyclopedia entry offers a scorecard.

The Benefits of the Establishment Clause (1992) is a talk on what the Establishment Clause adds to the Free Exercise Clause. Because of that comparative focus, and because the talk was delivered during the period of greatest concern about the Supreme Court's contraction of the Free Exercise Clause, the talk and the questions and answers that follow the talk address both clauses.

Formal, Substantive, and Disaggregated Neutrality toward Religion

39 DePaul Law Review 993 (1990)

This was the Sixth Annual Lecture at the Center for Church/State Studies at DePaul University in Chicago. It is the first elaboration of "substantive neutrality," a concept that has been foundational to much of my subsequent work. The core of the conceptual problem addressed in the lecture is this. Religious liberty sometimes requires that religiously motivated conduct be exempted from government regulation, so that believers can actually practice their faith. But regulatory exemptions on religious grounds look like special treatment for religion, and that seems inconsistent with another widely shared intuition, important in other religious liberty controversies: that government should be neutral toward religion. Is there a coherent understanding of neutrality that is consistent with full religious liberty?

Introduction

A wide range of courts and commentators commonly say that government must be neutral toward religion. There are dissenters in both directions — those who think that government can support religion, and those who pursue separation to the point of hostility. In this Article, I will largely ignore those dissenters. I will assume that neutrality is an important part of the meaning of the Religion Clauses.

This Article is about the meaning of neutrality. My goal is to clarify the concept, or at least to clarify our disagreements over its meaning. In the course of doing that, I will address a third group of dissenters — those who think that neutrality is meaningless and should be dropped from our discourse.

Those who think neutrality is meaningless have a point. We can agree on the principle of neutrality without having agreed on anything at all. From benevolent neutrality to separate but equal, people with a vast range of views on church and state have all claimed to be neutral.

Consider Texas Monthly, Inc. v. Bullock. The Supreme Court said that Texas can not exempt the sale of religious publications from a sales tax that applies to all other publications. Justice Brennan and Justice Scalia fundamentally disagreed on almost every issue in the case, but they both claimed to be neutral. Both of them used the word "neutrality," but neither of them defined it.

Most of us think of ourselves as fairminded, and so we tend to assume that our instinctive preferences are fair, and therefore neutral. Some scholars have tried to define neutrality more carefully, but they have produced quite inconsistent definitions.

Both of these points — the power of our instincts and the inconsistency of formal definitions — were brought home to me when I presented a paper on the Equal Access Act. The Act tries to guarantee the right of student religious groups to meet in empty classrooms on the same terms as other extracurricular student groups. The Supreme Court has finally upheld the statute, ending six years of debate over its constitutionality. This seemed to me an easy case to resolve with the neutrality principle. I argued that government could not discriminate against religious speech by private speakers.

A distinguished panel of commentators attacked me from all directions. Ruti Teitel insisted that the only neutral course was to exclude the religious speakers. She thought that my error was to treat as alike things that were different. Geoffrey Stone argued that neutrality permitted my solution, but certainly did not require it. He thought it was neutral to exclude the religion club if the school board also promised to exclude the atheist club, if there ever were one. Michael McConnell agreed with my solution, but he said my definition of neutrality was "heterodox." He insisted that neutrality is not a reliable principle, because properly defined, it is often at odds with religious liberty.

It was McConnell's attack that troubled me the most. I believe that neutrality is consistent with religious liberty — indeed, essential to its preservation. Our miscommunication did not seem to flow from any underlying policy disagreement. As a result of that exchange, I feared that other meanings of neutrality had so captured our vocabulary that I could not use the term to communicate, even to sympathetic audiences and even when I defined it. McConnell's comment on my definition of neutrality made it inevitable that I would explore the definition in greater depth. I take considerable comfort from McConnell's move toward a somewhat similar definition in the intervening four years.

I. Is Neutrality Worth Defining?

Maybe these conflicting uses of "neutrality" prove that we should abandon the concept. A few years ago, Peter Westen stirred up a great fuss by claiming that equality is an empty concept. Neutrality and equality are near cousins; they have most of the same attractions and most of the same inadequacies. If Westen were right, then neutrality would also be empty.

I am quite sure that Westen was wrong, but he highlighted something important that we too often ignore. Equality and neutrality are not empty concepts, but neither are they self-defining. They are insufficient concepts — insufficient to decide cases without supplemental principles. Let me briefly explain this point, with apologies to those who are familiar with the debate.

A claim to equal or neutral treatment is very different from an outright claim of entitlement. If I go to court claiming a constitutional right to a monthly check from the government, the court will laugh at me. It is up to Congress, and not the courts, to create government benefit programs. But if I go to court claiming a constitutional right to a check on the same terms as someone similarly situated, I may have a serious claim. If Congress has given social security benefits to women in my situation but not to men, I will probably win. My claim to an equal entitlement to benefits is very different from my claim to an outright entitlement to benefits.

Nor is it the case that once we have fully specified the entitlement, equality drops out. Westen would say that once we decide that sex is not one of the eligibility criteria, we no longer need equality to decide my case. That is descriptively true, but it is not true until after we have decided. It begs the question of how we decide that sex is not one of the eligibility criteria. The elimination of sex as a criterion will depend in part on our understanding of sexual equality, and not merely on the policy of the social security program.

This separation in theory is greatly reinforced in practice by the constitutional separation of powers. Congress first specifies the eligibility criteria, and has sole responsibility for social security policy. But the Court reviews those criteria to see if they violate its understanding of constitutional rights to equality. This separation of responsibility for policy definition is critical to the debate over Westen, and it has received too little attention. It means that equality claims can never be collapsed into the initial specification of the entitlement. So equality is not an empty concept.

But equality is an insufficient concept. No one claims that all five billion humans must be given precisely equal treatment in all matters. Some inequalities are considered fair and just, like punishing the guilty but not the innocent. Some are considered unfair but lawful, like homelessness in the midst of wealth.

Only a few inequalities violate legal rights to equality. Claims about equality, or neutrality, always require further specification: equality with respect to what classification, for what purpose, in what sense, and to what extent? Let me briefly consider these four variables.

First, there is the classification at issue. Those who are similarly situated should be treated equally, but what does it mean to be similarly situated? If Congress grants benefits to 40-year-old women but not to 40-year-old men, my claim will specify equality with respect to sex, and I will probably win. But if I specify equality with respect to age — if I claim that 40-year-old men are similar to 65-year-old men — I will surely lose. Our law embodies a fairly strong and general commitment to sexual equality, but only a weak and narrow commitment to age equality.

Second, there is the purpose of the classification. What it means to be similarly situated depends on why we are asking. If I claim that my employer fired me because of my age, then I have a claim under the age discrimination laws. Forty-year-old men are similar to 65-year-old men for purposes of hiring and firing, but not for purposes of social security. Third, there are different senses of equality. Two sharply different meanings are inherent in the concepts of equality and neutrality. These different meanings are familiar from the great national debate over affirmative action. Americans believe in equal opportunity and equal treatment, but in some contexts, we also believe in equal impact and equal outcomes. This is not an all-or-nothing universal choice; our choices vary with context. Few people would argue that equal impact is never the relevant measure, but we often disagree over when equal impact is the relevant measure.

Fourth, there is the extent of the claim. Is it sufficient for government to treat people equally when it imposes penalties and distributes benefits — to treat people equally in all tangible ways? Or do we also require government to be neutral in intangible ways as well — to be neutral in its speech and symbolic conduct? This distinction is critical to debates about religious neutrality. I will call it the difference between equality and neutrality. When I say government should be neutral towards religion, I mean to include the claim that it should not express an opinion about religion. But this is a controversial claim. Nothing in the concepts themselves will tell us whether the Religion Clauses commit government to neutrality in this sense, or only to equal treatment.

The first three variables are also controversial and insufficiently specified. Equality with respect to religion does not even sufficiently specify the classification. Religion may refer to status, to belief, to speech, or to conduct. The principal line of disagreement is different for each of these.

Most of our serious disagreements are about religious conduct, and not about religious status or belief. It is therefore religious conduct that is the principal subject of our inquiry into religious neutrality. Americans have very different intuitions about what it means to say that religious conduct is similarly situated to secular conduct, or what it means to treat religious conduct equally.

In religion as elsewhere, the answers sometimes depend on the second variable — the purpose of the classification. Whether we think religious conduct is similarly situated may depend on whether we are talking about direct regulation of conduct, resolution of private disputes, expenditures of government funds, taxation and tax exemption, and so on through the whole range of ways in which religion and government interact.

The debate over religious conduct also triggers sharp disagreement over the choice between equal treatment and equal impact. This may be the most fundamental source of disagreement about the meaning of neutrality toward religion.

Because neutrality requires so much further specification, it cannot be the only principle in the Religion Clauses. Nor can it be the most fundamental. We must specify the content of neutrality by looking to other principles in the Religion Clauses. When we have done that, neutrality should be defined in a way that makes it largely congruent with those other principles. We will often be able to explain the objection to a law by saying either that it restricts the autonomy of religious belief or practice, or that it threatens religious voluntarism, or that it deviates from religious neutrality, and so on.

This variety of explanations is important, and the neutrality explanation should not be omitted. In a nation of immense religious diversity, it is of great symbolic value that government views all manner of religious belief neutrally. That the government aspires to religious neutrality, and that the courts stand ready to hold government to its aspiration, is an important reassurance to religious minorities. We should not abandon or de-emphasize that reassurance. We should not omit neutrality from our set of explanations, even if we also offer other explanations, and even if some readers believe that those other explanations are more fundamental. Neutrality has great explanatory importance.

Neutrality also continues to have operational importance. If neutrality properly understood is largely congruent with other principles of the Religion Clauses, then any of these principles can be the warning flag that calls attention to a threat to religious liberty. Sometimes the deviation from neutrality will be the most obvious explanation of the danger, and even the most fundamental.

For example, I think neutrality is the most straightforward explanation in the equal access controversy. There is no general right to demand that the government make its property available for religious observance: there is not even such a right in narrow and especially appealing circumstances. The lack of such a right is implicit in Lyng v. Northwest Indian Cemetery Protective Association, where the Court refused to stop the government from building a useless road on land owned by the government but sacred to Native Americans. There is no entitlement to special access to government property for religious exercise.

(Continues...)

Excerpted from RELIGIOUS LIBERTYby Douglas Laycock Copyright © 2010 by Douglas Laycock. Excerpted by permission of William B. Eerdmans Publishing Company. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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