Dear all,
I apologize in advance, if I missed the list's discussion of Justice Thomas's views regarding the incorporation of the Establishment Clause. For what it's worth, I've been surprised by the vigor with which several prominent scholars have disapproved these views. Jack Balkin remarked, for example (www.balkin.blogspot.com), "[n]ow we know what it would be like to have Judge Roy Moore on the Supreme Court." Brian Leiter concludes that Justice Thomas has "solidif[ied[ his status on the lunatic fringe" (http://webapp.utexas.edu/blogs/archives/bleiter/001452.html). And Doug Laycock states that Thomas's "is a pretty astonishing view. . . . He acts as though the Civil War didn't happen, or it didn't matter" (http://www.latimes.com/la-na-thomas17jun17,1,3892729.story).
It strikes me, though, that Thomas's observations, in Part II-A of his opinion, are not particularly astonishing, and certainly do nothing to put him on "the lunatic fringe." Does he say anything, in that Part of the opinion, that Steve Smith, Philip Hamburger, Gerry Bradley, Akhil Amar, and many others have not also said, namely, that the point of the Establishment Clause was to protect the States' then-existing "establishments" and perhaps also, more generally, to leave questions of church-state relations to the States? And, with all due respect to Professor Laycock, I'm not sure it is fair to conclude that, because Justice Thomas agrees with those who believe that the Establishment Clause is particularly, and perhaps uniquely, unsuited for incorporation via the 14th Amendment (but see, e.g., Kurt Lash), he is therefore unmindful of the (obvious) sweeping changes that the post-Civil War Amendments worked in the constitutional law of individual rights. (Recall, for example, his passionate concurrence in Zelman).
Now, I'm inclined to think that, merits aside, the matter is water under the bridge, and that Justice Thomas's views on this question -- like his views on the scope of the Commerce Clause -- are not likely to become governing constitutional law. As Michael Perry likes to put it, the incorporation of the Establishment Clause has become "bedrock." Still, is there a reason why we should not concede that he is -- or, at least, MAY be -- correct?
Best,
Rick Garnett
At 04:26 AM 6/11/2004 -0500, you wrote:
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.)
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.
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).
Tom Berg
_____
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Wed 6/9/2004 11:29 PM To: Law & Religion issues for Law Academics Subject: The quid pro quo theory
I've always been puzzled about this "quid pro quo" theory of the Religion Clauses. There is no "religion as a source of values and beliefs"; there are *religions* (or denominations) as a source of values and beliefs. Many of them may share many values, but they will also differ on many values and goals. The members of the religions will be different, too. True, there are some cultural battles in which secularists are aligned on one side and religious observers of many faiths on another. But those are only a small fraction of all potential battles over values and beliefs, it seems to me; and even in those, a person's religious denomination is likely to be as important as his felt religiosity.
Is there much reason to believe that the religions -- or, perhaps more importantly, religious believers -- benefited by rigorous Free Exercise Clause protection will be the same as the ones burdened by a rigorously enforced Establishment Clause? Historically, Catholics have been quite burdened by a rigorous Establishment Clause, and have gotten very few benefits from the Free Exercise Clause, even when it was relatively rigorous. (They might have gotten some benefits from religious accommodations, such as the sacramental wine exemption, but not from the Free Exercise Clause as such.) On the other hand, the Amish have gotten some benefits from a rigorous Free Exercise Clause, but it's not clear that they have been much burdened by the Establishment Clause, even when it was relatively rigorous.
I'm not even sure that the benefits of a rigorous Free Exercise Clause and the burdens imposed by a rigorous Establishment Clause will even out if you aggregate the effects on all the religions. But I don't see how such an aggregation would be proper. Or am I mistaken?
Eugene
_______________________________________________
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Richard W. Garnett Notre Dame Law School Notre Dame, IN 46556 (574) 631-6981 [EMAIL PROTECTED] http://www.nd.edu/~ndlaw/faculty/facultypages/garnettr.html
_______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
