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See my comments below. -----Original Message----- Eugene,
I agree that very "global" quid pro quo theories -- like "broad
Establishment Clause, broad Free Exercise Clause" -- do not spread their
benefits to all religions equally. (For example, I think that "broad
establishment clause, broad free exercise" tends to protect or benefit
minority or outsider religions, although I'd qualify that statement in some
important ways. I'm thinking about this now because I'm writing a piece
about minority religions.) I would love to see a draft of your
article!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! (I am going to do a piece on American
Roman Catholicism in a Protestant Empire, and another piece on what I see as
the anomaly of the Black Church, or maybe I’ll put the two together (and
throw in Lutherans and some others) and turn it all into a book.) But more specific quid pro quo
arguments, it seems to me, can rest on real connections. For
example: "Because public schools cannot include religious teaching in
their curriculum, there should be special concern to protect religious private
schools and families' ability to use them if they conscientiously
wish to have religoius instruction in their children's
education." That connection is still not perfect -- not all
families who want religious instruction in education will belong to a
denomination that operates religious schools -- but the connection is real
because there are indeed many families who make such a choice between
public education and private religious schools. Interesting point. I wonder just what
protections those private religious schools need. I think that if parents, the members of
church X, which does not operate religious schools, wanted their children to
have religious instruction in public schools (which, presumably, would NOT be
instruction in the tenets of church X), they could just as easily accomplish
their objective by having their children attend the religious schools of
another religious group. Indeed,
they might be better off if forced to proceed in this fashion because they
could choose a private religious school operated by a religious group whose
teachings that most nearly mirror those of church X. Beyond Zorach-type
released time, why does the state need to do more? As for more global quid pro quo
notions: although of course there are many, many religious
views, nevertheless there is a general category called "religion"
that is singled out for distinctive treatment in the Constitution and therefore
may require distinctive treatment by government actors. Even if a
general quid pro quo approach doesn't benefit all faiths equally, it
seems to me that it can have the advantage of setting forth an
approach that doesn't treat religious activity just the same as every
other activity, but is principled in the ways it departs from that
"sameness" treatment. For example, the Lee v. Weisman passage
-- "preservation and transmission of religious beliefs and worship is
a responsibility and a choice committed to the private sphere, which
itself is promised freedom to pursue that mission" -- gives a
principled (though certainly disputable) reason for treating religious
activities distinctively in various legal situations. When someone
asks, for example, "Why should there be exemptions from law just for
religious conduct?," a possible answer
is, "It's part of this overall approach to religion that is sensible and
justifiable, for [X] reasons." I think that the fact that one can
point to other places where religion is treated differently helps make the
overall approach more sensible and justifiable (though, of course, still open
to dispute). More on the point of the institutional
structure, goals, and objectives of various religious groups: it has to be
true, I think, that no matter what legal regime is in place, some religions
will fare better than others because they are more aggressive, larger, more powerful
(culturally, economically and socially).
I think that the proper role of the law is to restrain the powerful, majoritarian, religions so that there is “space”
for the other religions to maintain themselves. In other words, solicitude for minority
religions strikes me as a constitutional imperative. Powerful religions can largely take care
of themselves. Tom Berg |
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