volokh at MAIL.LAW.UCLA.EDU
Fri Oct 29 12:23:00 PDT 1999
Andy's article sounds extremely intriguing, as all his work does. Since the thesis has been raised on-list, though, might I ask for a bit of an on-list clarification?
My question relates to the argument that "government may not declare religious truth. Some laws cannot reasonably be interpreted as anything other than government endorsement of a particular religion's beliefs. These are the paradigmatic violations of the secular purpose requirement." On an abstract level, I think many people would agree with this -- but it seems to me the historical problem with this prong has been that on the concrete level, there has been virtually *no* consensus on what qualifies as such a law (except *possibly* mandatory school prayer). Graduation prayer, religious symbols in public places, bans on abortion and homosexuality, moments of silence, released time programs -- for all of these, I think some would argue that such "laws cannot reasonably be interpreted as anything other than government endorsement of a particular religion's beliefs," and others would give interpretations that strike them as eminently reasonable that have nothing to do with endorsement of a particular religion's beliefs.
Andy, would you be interested in briefly addressing this question on-list, or would that be futile without quoting the whole article?
Also, a secondary question: When you say that "generalized support for religion in general" is permissible, do you mean that any preference for one belief system -- e.g., conscientious objector exemption from the draft -- must be made available to all belief systems equally, or that the preferences must take the form of a generalized exemption system a la Smith or a la an exemption-less, specific-revision-less RFRA?
From: Andrew Koppelman [SMTP:akoppelman at NWU.EDU]
Sent: ä 28 àå÷èåáø 1999 23:40
To: RELIGIONLAW at listserv.ucla.edu
Subject: secular purpose
> From: Andrew Koppelman[SMTP:AKOPPELMAN at NWU.EDU]
> Sent: Thursday, October 28, 1999 2:40:01 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: secular purpose
> Auto forwarded by a Rule
I have just finished a draft of a paper defending the secular purpose prong of
Lemon v. Kurtzman. Its argument was first developed during conversations on
this list, and attempts to respond to objections raised here. I would be
pleased to send a copy to anyone who asks. The introductory paragraphs follow:
The Supreme Court has held that, to be constitutional, a law must "have a
secular legislative purpose." This rule has drawn withering criticism, which
has not been persuasively answered. A third of the members of the Court,
including the Chief Justice, may be ready to scrap it entirely.
The doctrine is defensible, and the argument is simple. The secular purpose
requirement, I shall argue, follows directly from a principle at the core of
the establishment clause: that government may not declare religious truth.
Some laws cannot reasonably be interpreted as anything other than government
endorsement of a particular religion's beliefs. These are the paradigmatic
violations of the secular purpose requirement.
My defense has implications that go beyond this particular doctrine. The
secular purpose requirement is a window into the meaning of the establishment
clause. A correct formulation and defense of the requirement helps to resolve
a problem that has plagued first amendment theory for decades: the apparent
conflict between the establishment clause and the free exercise clause of the
The deepest criticism of the secular purpose requirement is that it flatly
contradicts the free exercise clause, which singles out religion as such for
special protection. If the secular purpose requirement is understood to meant
that government may never extend special favor to religion as such, then this
criticism is sound. It is not logically possible for the Court both to be
neutral between religion and nonreligion and to give religion special
The proper response to this problem is to clarify the meaning of "secular
purpose." If the logical objection is not to be fatal, then there must be some
way of interpreting "secular purpose" so that it is at least possible for the
government to give certain kinds of special treatment to religion. The answer,
I will argue here, is to understand "secular purpose" as forbidding any
preference more specific than a generalized support for religion in general.
Moreover, "religion-in-general" should in this context be understood abstractly
enough to include nontheistic religions such as Buddhism as well as atheism and
agnosticism in short, all belief systems that make ultimate claims about the
meaning of human existence. If religion is understood this abstractly, then
government can favor it as such without declaring religious truth.
This way of understanding "secular" concededly makes the word into a term of
art, and this is a weakness in my argument. Law ought normally to correspond to
ordinary language. My proposal does, however, have three important virtues. It
avoids logical incoherence. It fits the case law well. And it provides a
morally attractive approach to the relationship between religion and the state.
Part I of this essay describes the doctrine and the objections that have been
offered against it. It then describes the counterarguments of Justice
O'Connor, who is the only member of the Court who has responded to these
objections, and it shows how Justice O'Connor's defense of the doctrine fails.
Part II explains why there must be a secular purpose requirement. It is
axiomatic that government may not declare religious truth. Some laws are only
intelligible within a particular sectarian tradition and thus implicitly
declare religious truth. These are the paradigmatic violations of the secular
purpose requirement. If the basis of the secular purpose requirement is
understood in this way, then it is easy to answer most of the objections that
have been raised against it.
Part III addresses the deepest of the objections, which claims that a secular
purpose requirement would require the government to treat religion with callous
indifference. This is a powerful objection because the free exercise clause by
its terms gives special treatment to religion and thus seems to violate the
secular purpose requirement. It is not possible without incoherence to read
the establishment clause to prohibit singling out religion as such for special
benefit. The answer, I argue, is to define the secular purpose requirement
with more precision than the Court has done. If its basis is understood in the
way that I have suggested, then government may favor religion in general, so
long as religion-in-general is defined at a high enough level of abstraction
that its support does not violate the axiom that government may not declare
religious truth. The religion that government may support must include
nontheistic religions such as Buddhism as well as atheism and agnosticism in
short, all belief systems that make ultimate claims about the meaning of human
Part IV shows that the theory of secular purpose that I have offered fits the
case law well. It shows how the theory of the establishment clause developed
in Part III can explain the perennial puzzle of tax exemptions for churches.
It concludes by reexamining the secular purpose cases and showing how my
account makes sense of most of them. The cases that the theory cannot defend,
I argue, are in fact indefensible and should be overruled.
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL 60611-3069
akoppelman at nwu.edu
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