Religious Liberty as a Positive and Negative Right

Abstract

This Article takes a different approach to the debate about whether the two religion clauses in the Constitution represent distinct values. The differences between the clauses turn not so much on distinct substantive values particular to each clause but in the means of achieving those shared values. The Establishment Clause is primarily for purpose of enhancing religious liberty writ large: ensuring religious equality; guaranteeing disentanglement of religion and government; ensuring the legitimacy of the secular democratic order; and diffusing religious divisiveness. Conversely, the Free Exercise Clause has a purpose of protecting religious liberty on a small scale: protecting freedom of conscience and the ability to practice one's religious beliefs by preventing government coercion. Thus, absent a crossover to protect the autonomy of religious institutions that has both Free Exercise and Establishment Clause qualities, nonestablishment ensures distinct qualities of religious liberty unrelated to free exercise and does so on a grander scale. Second - and to the heart of my thesis - the Establishment and Free Exercise clauses interact with and respond to government in different ways. Free exercise, by virtue of its more limited quality, is essentially a negative right - a shield against government coercion, but one that does not place any affirmative obligations on the government. Whereas government may sometimes permissively accommodate religious practice, government generally is under no duty to enhance free exercise and is only required to remove government burdens on that practice. In essence, the “Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.” But unlike free exercise, the nonestablishment value can tell the government what it must do. Thus, nonestablishment has both negative and positive qualities, not only preventing government from engaging in conduct that endorses, favors, advances, or disparages religion, but also imposing affirmative obligations on government to act in ways that enhance Establishment Clause values. This latter obligation of enhancement is unique to the nonestablishment religious liberty value.