Federalism and Liberty

[Gaffney, Edward]

Marci Hamilton writes:

As a believer, I firmly
>believe in the responsibility of  the church to account for its demands on
>society and to respect a large number of collectively shared values, such
as
>historical preservation.  Churches have an obligation to adjust and
consider
>their views in light of their shared world.  This runs into direct conflict
>with the Laycock-Levinson model in which every time there is a conflict
>between church and state, the church has a natural right to hold onto its
>original position.  Accommodation should not be an obligation solely
delegated
>to the state.
>
1. Like Sandy, I don't think that "every time there is a conflict between
church and state," the church should win."  That's a red herring easily
disposed of by a casual glance at the cases from the early 1980s on, in
which the governmental interest was escalated to a level of generalization
that made a victory for the government seem reasonable, at least to some.  I
should have thought that there is broad consensus (I hope including Marci)
on the proposition that the government should not have won all of those
cases, any more than the church should have won all of them.
2.  Marci 's stated goal seems to be to avoid a zero sum game in which the
government always loses.  That makes sense.  RFRA tried to achieve that very
goal, but in a manner that Marci disagrees with.  The very articulation of
her goal implies a flip side in which the church shld not always lose.  The
gimme here is the tell-tale adverb "always."  I always know I'm in trouble
with my wife when either of us says of the other, "you always."  I try to
avoid saying "you always" to her, but I am not always successful.  If she
says "you always" to me, I am content to observe with Harry Truman that
"always is a pretty long time" (or did he say it about "never"?).
3.  One problem with Marci's suggestion is textual.  The political duties
which the Bill of Rights imposes are not addressed in the first instance as
moral exhortations upon the people, but as limits on governmental actors,
(as in "*Congress* shall make no law" or "No *state* shall deprive any
person").  Thus the free exercise provision is not an exhortation to
religious communitites to modify their beliefs and practices to some
acceptable lowest common denominator.  The problem of accommodation of
religious beliefs is one for the government to sort out, not for the
churches.
4.  I agree, however, with Marci that at least some "Churches have an
obligation to adjust and consider their views in light of their shared
world," at least sometimes.  My modifiers of her position reflect two
caveats.  First, not all religious communities share this conviction.  John
Howard Yoder has a very helpful explanation of the communitites, such as the
Mennonites, who hold to the contrary.  See Yoder, *Christian Witness to the
State.* Second, even among those who share a sense of a general duty to be
reflective about their participation in the civil community, there is no
consensus that the commands of the civil order should always be obeyed.
 Perhaps the most obvious example is the command to kill in wartime, a
command that has met with religiously grounded resistance not only from
members of traditional "peace churches," but also across religious and
denominational lines. Another example of the duty to disobey an unjust law
was the protest (sometimes religously gorunded, sometimes not) against the
apartheid laws during the 1950s and 1960s.   Civil disobedience is by no
means the full measure of how religious communities should relate to the
government, but the discernment of when to object to the imposition of a
siginificant burden is itself a complicated task that cannot be assumed to
go always in favor of yielding to the assertion of any old governmental
interest (which then gets escalated to very grand levels of importance by
government lawyers).
5.  Left out of much of the discussion of how to avoid the "zero-sum" or
"always" trap is the less restrictive alternative standard.  Sometimes the
government truly cannot effectuate a truly important interest in any other
way than by imposing a significant burden on a religious believer or
community.  But both sides can "win" so to speak if more energy were focused
on finding ways of getting to substantial compliance with a governmental
interest in a manner that avoids conflict with a religous duty.  There's
lots of room here for both sides to be creative in devising solutions, but
my sense after *Boerne* is that government attorneys are much less
interested in trying to do this than they were when there was a standard
that obligated them to search for a less restrictive alternative.
6.  The case I would like Marci to tell us about is not *Reynolds,* but
*Barnette.*  Shld the Witnesses modify their convictions about graven images
"to respect [the] collectively shared value" of saluting the flag as a
symbol of national unity?  Leave to one side the reliance in *Smith* on
*Gobitis*, which *Barnette* of course reversed.  And tell us whether
Barnette is the better precedent today or even, dare I say, always?

Ed Gaffney
Pepperdine University School of Law