The Pluralistic Foundations of the Religion Clauses

Abstract

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. In interpreting the Free Exercise clause the United States Supreme Court has argued that in the absence of discrimination against religion or in the presence of other constitutional values, there is no violation of the Constitution when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in contending that an equality emphasis misses much of importance in religion clause jurisprudence, but their emphasis on liberty or equal liberty is too narrow. Instead, he suggests an understanding of the proper place of equality in religion clause jurisprudence requires an appreciation of a wider range of values. Professor Shiffrin recognizes that the equality value is important, but shows that many deviations from religious equality are deeply embedded in the framework of government operations. It will not work to maintain that our Constitution regards religion and non-religion as equal. Indeed, the religion clauses are best interpreted to protect religion not just because of values like autonomy, equality, community, and religious peace, but because religion is regarded as important. This, he suggests, is a regrettable interpretation. It obviously is a bitter pill for religious skeptics to swallow, and it should even be a source of regret for most religious believers. Nonetheless, it is the best reading of our evolving Constitution. The foundational view that religion is important, however, does not flirt with theocracy. Far from it. The Constitution forbids coercion and, with exceptions, the favoring of one religion over another. Even more important, with some exceptions, the Constitution is best interpreted to curb government intervention to favor religion, not because religion is a constitutional stepchild, but because the seductions of governmental dependence are great and because government is not to be trusted. In applying his analysis, Professor Shiffrin explores many examples including (1) the ingestion of peyote; (2) animal sacrifice; (3) the government's use of religious symbols; (4) government's involvement with monotheistic prayer, including the Pledge of Allegiance; (5) the teaching of evolution in the public schools; (6) government protection of conscientious objectors and those who refuse to work on the Sabbath; and (7) voucher programs together with government support for religion within the public schools. Given the pluralistic character of the values underlying the religion clauses and the variety of contexts in which questions about the legal status of religion arise, he concludes, that equality can best be seen as one important value in a rich and evolving tradition. This tradition, he argues, is misunderstood by both the secular left and the religious right. The secular left does not understand the importance of religion in our constitutional tradition, and the religious right does not understand that government harms religion when it tries to help. Neither the secular left, nor the religious right understands the complex dimensions of religious equality.