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

[Michael Newsom]

MessageI am not sure that Eugene has responded to Bobby's interesting and thoughtful argument that "neutrality" -- and I might add "equality" as well --  presuppose a certain theological consensus, what Bobby refers to as "reasonableness."  A proper analysis of the Religion Clauses, as I have argued over and over again, turns on a careful study of the context or setting in which the Clauses operate.  It is precisely the theological consensus that matters, not vague abstract words like "neutrality" and "equality," both of which necessarily rest on anterior judgments about reasonableness or consensus.  Indeed, I would press the point and note that one cannot easily understand church-state law in America without also thinking through the implications of race, or of the complex and intimate intersections of race and religion that so dominate and animate our history and traditions, for better or for worse.

I would be curious to know what Professor Lipkin thinks of the following suggestion or argument: that the meaning of American church-state law is to a large extent defined by arguments over the topology, scope, nature or extent of "theological reasonableness or consensus."  While it is a terribly flawed work,  I wonder what he thinks about Herberg's Protestant.Catholic.Jew, particularly Herberg's obvious discomfort with the weakening or even the loss of those theological beliefs that make Catholicism and Judaism distinctive and different from Protestantism.  It seems to me that at some level, although Herberg is conflicted on the point, Herberg is unhappy with the definition of "theological reasonableness or consensus" that emerged in post-WWII America precisely because the distinctive features of Catholicism and Judaism get lost in that particular consensus, even though the consensus was a "white" one, and the significance thereof for non-whites, particularly African-Americans, was something for which Herberg cared not one whit.  [Herberg essentially treats of African-Americans in one dismissive footnote.]  In conclusion, the argument comes down to this: if we want to understand American church-state law, we have to understand the consensus as it has changed and developed over time, and we also need to explore the racial dimensions of that consensus.  [I, of course, use the term Protestant Empire as a useful shorthand for this consensus.]
  ----- Original Message ----- 
  From: Volokh, Eugene 
  To: RELIGIONLAW at listserv.ucla.edu 
  Sent: Tuesday, October 01, 2002 7:57 PM
  Subject: Re: Does Brown v. Bd. of Ed. "disfavor a religion"?


      I appreciate Bobby's thoughtful response, but I wonder whether his definition of "disfavor religion" might (1) be so broad that it's not terribly helpful, and (2) be quite different from the way the term is usually used.  I don't think that most people would say that, for instance, the government "disfavors" traditional Catholicism by rejecting the desires of many traditional Catholics about abortion, the death penalty, and so on.  And if that was the meaning of the term, then there wouldn't be anything inherently wrong or troubling about such disfavoring of religion.

     And it seems to me that Bobby's arguments do not undermine the utility and soundness of the definition of neutrality that I propose:  The government may not discriminate against religious people or institutions on account of their religiosity or religious affiliation.  The law generally does do this, and I think that it's right that it do this.  One can argue that the law should also provide some accommodation of religion by exempting religious observers from generally applicable laws that offend their consciences; and this sort of negative liberty might be said by some to be an aspect of "neutrality," though I don't agree.  But even though I wouldn't call this "neutrality," if it is called neutrality, it certainly seems quite viable; and this principle isn't violated by saying that the government may *not* ban churches of a certain affiliation.

      Finally, this ties in to Bobby's claim that "*not* 'zoning against Christianity' might be viewed as a failure to protect the spiritualists' religious equality rights."  If religious equality means that all laws must be equally enactable, so long as someone has a religious motivation for supporting them, then this would be the problem.  But I don't think that this is what religious equality should be read as meaning, or that it has ever been read as meaning.  Yes, so long as we have a Constitution that bars certain laws from being enacted, this means that not all laws are equally enactable, and those who support such prohibited laws -- for religious reasons or secular ones -- lose.  But I just don't see why that should be seen as a violation of religious equality rights.

      Eugene

  -----Original Message-----
  From: Robert Justin Lipkin [mailto:RJLipkin at AOL.COM] 
  Sent: Tuesday, October 01, 2002 3:02 PM
  To: RELIGIONLAW at listserv.ucla.edu
  Subject: Re: Does Brown v. Bd. of Ed. "disfavor a religion"?


           Two remarks in response to Eugene's post. First, insofar as the government disallows adherents of a particular religion to do X, for example, to live in a completely racially segregated society, it disfavors that religion with regard to X. It is irrelevant that disfavoring a religion in one central aspect of its value scheme is not totally disfavoring that religion. Consequently, the fact that the government protects the free speech of adherents of that religion, and so on, is irrelevant to the question of whether it disfavors the religion regarding racial segregation.  Put another way, if Eugene acknowledges that Brown rejects the racial, associational interests or desires of segregationists in governmental contexts, then I offer the following definition of 'disfavor.' The government disfavors a religion when it rejects that religion's interests or desires regarding a particular! social end. This sense of "disfavors" is compatible with the government protecting other interests of the religion in question. Simply put, the distinction here is between the government disfavoring a religion concerning a particular conflict and disfavoring the religion completely. Certainly, Eugene is right that disfavoring a religion in one respect is not necessarily to disfavor it entirely. But I do not think my remarks in any way suggested a rejection of this distinction.

    Second, Eugene's conception of "neutrality," I submit, concerns the well-ordered liberal society and the coexistence of 'reasonable' religions. That's why "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." To be sure. But what about religions which define "churches, publications, voting blocs, and so on" in ways incompatible with the existence of  the 'churches' of other religions?  (Or alternatively, what about religions that maintain that alternative religious practices are incompatible with their existence? Indeed, isn't this the conflict that started this discussion?) In this case, religion X maintains that the existence of its church is incompatible (metaphysically, spiritually, however) with the existence of other churches and so a government which protects these aspects of other religions is disfavoring (rejecting) its interest or desi! re to practice its religious values. For the most part, as far as I am aware, most American religions eschew this attitude. And aren't we glad? 

           Consequently, Eugene's sense of "neutrality," whether or not important, is limited strictly to religions that are committed to a 'reasonableness' condition. The darker side of religions (as well as the darker side of non-religious belief systems), at least conceivably, is not as tame as 'reasonable' religions, and therefore requires a much deeper sense of neutrality than is conceptually possible. So when we say that government disfavoring of 'unreasonable' religions "is perfectly fine," let's be clear on what we are saying. We are saying that our conception of neutrality is limited to certain kinds of religions only, and other kinds of religions have no reason to embrace it. In other words, the foundation of Eugene's conception of neutrality is a (non-neutral) rejection of religions that have an improper pedigree. Eugene's sense of neutrality is possible only by grounding the Constitution in a thoroughgoing rejection of 'unreasonable' relig! ions. The problem here, of course, is that the adherents of these religions take the charge of unreasonableness with a grain of salt because, in their view, their religions are true. Indeed, without a rigorous conception of 'reasonableness' our constitutionalism appears tribalist because no noncircular definition of 'reasonableness' is likely to exist. 

    Bobby Lipkin 
    Widener University School of Law
    Delaware





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