Religious equality

[A.E. Brownstein]

Eugene asks (see below) why a school voucher plan that only provides
subsidies to schools that are open six days a week including Saturday
should be understood to violate the Establishment Clause as opposed to the
Free Exercise Clause. A six day public school program that operated on
Saturday would burden students who obeserve a Saturday Sabbath as well and
we might review that as a Free Exercise problem requiring an exemption for
religious students, not an Establishment clause violation. It is a good
question, but the answer isn't all that simple. And, indeed, I think there
are state actions that may violate both the Establishment clause and the
Free Exercise Clause. (Both claims were raised in the Sunday closing cases,
for example, and there was a fair argument in support of both claims.)

But before I try to explain why I think that there is an Establishment
Clause violation here, I think it is important to emphasize one important
point. Eugene's constitutional model doesn't provide constitutional
protection to members of religions that observe a Saturday Sabbath under
either the Free Exercise Clause or the Establishment Clause with regard to
both the six day school voucher program or the six day public school
program. I appreciate the fact that Eugene would not vote for programs that
burden and discriminate in effect against particular religions as these
programs do. But as thoughtful and persuasive as Eugene is, I would rather
have constitutional doctrine to rely on when issues like this arise.

I think that the core meaning of religious liberty protected by the Free
Exercise clause involves protection against state action that prevents a
person from practicing their faith. A law that prohibits wearing a yarmulke
violates the free exercise rights of Jews without regard to whatever other
laws the state may adopt regulating the clothing a person may where. The
core meaning of the Establishment Clause is less clear, but most people
would agree that a prohibition against religious favoritism is at least one
of its primary purposes.

When we move away from direct interference with religious practices, and
begin to examine refusals to subsidize or support religious or
non-religious activities engaged in by religious individuals or groups,
identifying a free exercise violation gets a lot trickier. The state's
failure to provide the benefit standing alone doesn't violate the
constitution in the same way that the state's direct interference with a
religious practice would. State's don't have to provide public education at
all and the failure to do so would not violate anyone's free exercise
rights. Thus, when we are talking about benefits, the argument that the
failure to provide a benefit involves the violation of a constitutional
right has to be predicated in part on who else gets the benefit.

If we are talking about fundamental rights that the Court views as lacking
an equality dimension (such as the right to travel and the right to have an
abortion), denying benefits can sometimes be construed to constitute
penalizing the exercise of the right. That may be unconstitutional, but
even here the courts commonly use an equal protection framework to evaluate
challenged state action. Shapiro v. Thompson isn't presented as a
substantive due process-right to travel case. It is presented as an equal
protection case.

When we consider rights that do have an equality dimension to them such as
speech, using an equality analysis rather than a liberty analysis may make
even more sense. So in a case like Carey v. Brown or Mosley, the Court uses
an equal protection analysis to strike down laws that exempt labor
picketing from a ban on residential picketing or picketing near a school.
Given that it would be constitutional to prohibit residential picketing or
picketing near a school, the plaintiffs in Carey or Mosley would have a
hard time arguing that the law in question infringed their liberty
interests. If we eliminated the labor picketing exemption, they would not
be able to engage in their expressive activities. What was constitutionally
problematic in these cases was the state's favoring of one subject of
speech. To my mind, that's an equality issue, not a liberty issue, although
I have no objection to resolving the matter as part of first amendment
doctrine rather than calling it an equal protection case.

When we get to the voucher example, I don't think it is unconstitutional
for a state to refuse to have a voucher program or to refuse to have public
schools at all. So this isn't the clear core kind of free exercise problem.
I do think a six day public school program should provide free exercise
exemptions for Saturday Sabbath observers (but, of course, I am generally
in favor of regulatory exemptions and this could be construed as either a
regulatory exemption case -- given compulsury education laws -- or a
penalty case.

I think the voucher case is harder because resolving it under a free
exercise rubric requires more of an understanding of what other educational
opportunities are out there. So, for example, if the state did grant free
exercise exemptions to Saturday Sabbath observers who could not attend
public school on Saturday, but kept the six day including Saturday voucher
policy, I'm not sure that this is a free exercise violation. Saturday
Sabbath observers can attend their own private schools without subsidies or
they can attend public schools with religious exemptions. What they don't
get is vouchers that enable them to attend state subsidized private
religious schools. That standing by itself probably isn't a free exercise
violation. When we couple it with the fact that people of other faiths
(Sunday Sabbath observers) do get to attend a state subsidized private
religious school, that seems to me to be at least as much of a preference
for some faiths and not others (an Establishment Clause violation) as it is
a Free Exercise violation.

Maybe we could call this an unconstitutional condition that violates free
exercise rights, but after Rust v. Sullivan, I'm just not sure how much of
unconstitutional condition doctrine still exists in straight out funding
cases involving government restrictions on the funded program itself.

                                                                                                Alan Brownstein
                                                                                                UC Davis