Does Brown v. Bd. of Ed. "disfavor a religion"?

[Volokh, Eugene]

    Hmm -- doesn't that depend on what exactly you mean by "disfavor"?  The
government doesn't have to "disfavor" that religion any more than (for
instance) Roe v. Wade requires it to disfavor religions that oppose abortion
or Brown v. Bd. of Ed. requires it to disfavor religions that oppose race
mixing.  It doesn't have to bar the religion from putting up its own
churches, or from having its own voters vote for things that they like.  It
doesn't have to discriminate against adherents of that religion as to their
civil rights or their eligibility for government benefits.  This, I think,
is a very important form of "neutrality" -- the notion that even religions
who have dissenting views about free exercise, racial equality, and abortion
are entitled to have their own churches, publications, voting blocs, and so
on.

    The Free Exercise Clause, the Equal Protection Clause, and the right of
privacy simply mean that the government may not engage in certain practices
(e.g., excluding churches, discriminating based on race, or punishing
abortion).  I don't think that this is properly described as "disfavor[ing]"
those religions that want the government to engage in those practices.  But
if we do define "disfavor[ing] a religion" so broadly as to cover this,
well, then, this particular form of disfavoring religion (i.e., preventing
the government from enacting policies that members of the religion tend to
favor) is perfectly fine.

    Eugene

-----Original Message-----
From: Robert Justin Lipkin [mailto:RJLipkin at AOL.COM]
Sent: Tuesday, October 01, 2002 10:26 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: ZONING AGAINST CHRISTIANITY



In a message dated 10/1/2002 12:04:14 PM Eastern Daylight Time,
VOLOKH at mail.law.ucla.edu writes:




But doesn't the Free Exercise Clause -- as interpreted by Lukumi Babalu Aye
and Smith, but also as written and as historically understood -- make quite
clear how the conflict must be resolved?



       Jurisprudential issues often arise just when precedent makes "quite
clear how the conflict must be resolved[.]" The jurisprudential issue here,
one which might not  interest everyone, is that American constitutional law
requires government to disfavor a religion which requires that it dominates
the playing field. If my religion requires me and everyone else to eat pork,
then a constitution that disallows government to pass laws requiring
everyone to eat pork, disfavors my religion. So be it; we all agree
government should not support religion in this way; that's the way our
traditions have it and that's the way we want it.

       Why should this consensus be interesting? Well, it's interest lies in
precluding (or at least requiring drastic reworking of)  a constitutional
theory of the religion clauses cast in terms of "neutrality." Neutrality, in
this view, can exist only when the religions in a polity are all of a
certain kind--'reasonable'--and then only because such religions are
committed to a certain controversial substantive view of the relationship
between spirituality and politics. Add to this mix religions committed to a
different conception of this relationship and our "neutral" government
treatment of different religions collapses.  Perhaps, no one takes seriously
the idea that there exists a theory of the religion clauses that provides an
effective way for government to be neutral between religions. But if not,
then this kind of conflict, demonstrates why neutrality cannot be taken
seriously. Conflicts between and among religions in American co!
nstitutional law might be resolvable just because we are blessed with
religions committed to certain 'reasonable' presuppositions like "live and
let live." Consequently, the fact that we know how a particular controversy
should be resolved does not exhaust its interest or importance, certainly
not from a jurisprudential perspective.

Bobby Lipkin
Widener University School of Law
Delaware

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