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

[Robert Justin Lipkin]

       I think that this is an important dispute and that Eugene's position,
though formidable, is wrong.  Let me make some closing remarks.  First,
Eugene writes that he accepts the principle that "the government may not
discriminate against religious people or institutions on account of their
religiosity or religious affiliation."  But that's because most religions in
the United States are 'reasonable' ones.  Surely the government may, as
Eugene acknowledges, discriminate against a religion, which conscientiously
requires violence to rid the world of heretics.  We can of course say that
this isn't 'discrimination' because we want to reserve that term for certain
special contexts only, or because the allegedly discriminatory law has
general applicability against violence and is not directed solely at the
wayward religion.  But this is shallow comfort to the conscientious believer.
 A much more candid response, I think, is to say that some discrimination is
justifiable and concede that justification may only be local.

    Second, I'm not certain that linguistic intuitions are helpful here.  And
I, for one, don't know what "most people would say" about the government's
alleged rejection of certain Catholic convictions.  At any rate, if
linguistic intuitions rule, they must be considered or reflective intuitions,
and that goes to the heart of the dispute between Eugene and myself.  I am
not wedded to any particular definition of "disfavors" or even to the word
itself.  I find it helpful; Eugene does not.  So be it.  My point is simply
that in certain kinds of conflicts, American constitutionalism favors (there
I go again) certain 'liberal' solutions.  Call this "favoring," "accepting,"
"choosing," or any other term that captures the loss experienced by those
whose position the government disallows.  For example, can there be any
serious dispute that segregationists have lost (are disfavored and
discriminated against) regarding racial justice in American politics?  (And
aren't we delighted they lost?)  I do not see what is gained by attempting to
redescribe this loss by appealing to linguistic intuitions, even if Eugene is
right about these intuitions.  Doing so may reassure us about the
justifiability of our victories, but it doesn't explain away the fact that
segregationists, for example, the losers in Brown have lost the conflict over
segregation/integration.  These are "constitutional losers" just as surely as
slave owners were constitutional losers.  One thing gained by describing
these people as "constitutional losers" is a fuller appreciation of the
nature of our victories, but perhaps more importantly, it should keep us
vigilant against the potential redirecting  constitutional losses into new
'respectable' constitutional positions as certainly occurred after
Reconstruction.

    Third, there exists a desire to redescribe certain positions in ways that
render them easy to reject.  We bristle at attempts to show that certain
constitutional losers have a position that must be, even if only initially,
taken seriously.  So we might say that rejecting the segregationist's
position doesn't even qualify as a substantive choice, which puts in jeopardy
our conception of governmental neutrality.  Let me say that I recognize
Eugene's conception of neutrality, but it is a conception that makes sense
only in the context of a liberal, broadly understood, conception of society.
It does not, perhaps cannot, provide a reason for anti-liberals or
nonliberals to embrace, and thus it is a conception of 'neutrality' with a
decidedly substantive (controversial?) spin.  One important feature of this
meta-reflection on neutrality is that it shows why neutrality has only
marginal value regarding some of the multicultural conflicts in the world
today.

    Finally, I do not think I said that disfavoring a religion is a
"violation of religious equality rights" certainly not in the sense that such
disfavoring is (or should be) actionable.  But I do believe that American
government disfavors the equality of constitutional losers, such as the
segregationists in Brown or religions that define themselves in terms of
exclusion.  In conclusions, from my perspective, Eugene's argument can be
described as follows:  (1) he rejects a certain lexicon to describe
constitutional losers and (2) were he to accept the lexicon, he is
unperturbed at rejecting the losers.  My own position is (2), that is, accept
the lexicon and reject the losers. My inclination, however, unlike Eugene's
is not to stop the inquiry at this point, but rather to ask further questions
about whether rejecting constitutional losers reveals anything important
about us and the kind of constitutionalism we embrace.  My hunch is that it
does.  I suspect the Eugene believes (of course I do not wish to speak for
him) that once we reject the losers there are no further (interesting)
questions to answer.  The conflict between Eugene and myself in this case, if
not generally, is that when Eugene believes our work is done, I believe it
has only started.

Bobby Lipkin
Widener University School of Law
Delaware

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