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I thought list members might be interested in
this:
Carl H. Esbeck, “Play in the Joints Between the Religion Clauses” and
Other Supreme Court Catachreses, 34 Hofstra L. Rev. 1331
(2006). http://ssrn.com/abstract=934410 Abstract: Consistent with its fumbling of late when dealing with cases involving religion, the U.S. Supreme Court has taken to reciting the metaphor of “play in the joints between the Religion Clauses.” This manner of framing the issue before the Court presumes that the Free Exercise and Establishment Clauses run in opposing directions, and indeed will often conflict. It then becomes the Court’s task, as it sees it, to determine if the law in question falls safely in the narrows where “there is space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause.” This conception that the free-exercise and no-establishment texts are in frequent tension, and at times are in outright war with one another, is quite impossible. Each substantive clause in the first eight amendments to the Bill of Rights was designed to anticipate and negate the assumption of certain powers by the national government—a government already understood to be one of limited, enumerated powers. Thus, for example, the free-speech clause further limited national power and the free-press clause did so as well. These two negatives on power—speech and press—can overlap and thus reinforce one another but they cannot conflict. Simply put, it is logically impossible for two negations of a government’s delegated power to conflict. Similarly, the free-exercise provision further restricted the nation’s powers and no-establishment did likewise. These two negatives can overlap and thereby doubly deny the field of permissible governmental action, but they cannot conflict. To be sure, each clause in its own way works to protect religious freedom. And when circumstances are such that the scope of the clauses overlap, they necessarily compliment rather than conflict with each other. However, the Court’s imagining these two negations of governmental power as frequently clashing is at a conceptual level simply not possible.
Gregory S. Baylor |
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