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

Volokh, Eugene VOLOKH at
Fri Oct 4 15:46:35 PDT 2002

    Sorry for the delay, and this response may be moot by now.  But here are
a few quick thoughts:

    It seems to me that the government may not discriminate against either
reasonable religions or unreasonable ones.  The government may not shut down
churches that conscientiously believe that violence is required to rid the
world of heretics, nor, in my view, may it deny them charitable tax
exemptions, so long as they simply believe and not act.  Of course, once
they try to violently rid the world of heretics, it may suppress them -- but
not because they are religions, or because they are unreasonable, but
because the government may punish all people who try to violently rid the
world of anyone.

    Conversely, the Catholic Church may be perfectly reasonable, but the
legal system may say that one goal of many Catholics -- outlawing abortions
-- is not permissible.  In my view, this is not discrimination, though in
Bobby's it is.  In my view the nondiscrimination rule is that the government
must treat all people and institutions equally without regard to their
religion or religiosity.  That applies to reasonable churches as well as
unreasonable ones.  There is no rule, I think, that requires the government
to treat all proposed legal regimes (ban on abortion, no ban on abortion,
exclusion of churches from a neighborhood, no exclusion of churches from a
neighborhood) equally.  And rejecting a particular legal regime is not
religious discrimination, even if that legal regime may be favored by one or
another religious denomination.

    It's thus true that American constitutionalism favors certain legal
solutions -- but framing this as disfavoring or discriminating against
religion does not, I think, help the analysis.


-----Original Message-----
From: Robert Justin Lipkin [mailto:RJLipkin at AOL.COM]
Sent: Wednesday, October 02, 2002 10:30 AM
Subject: Re: Does Brown v. Bd. of Ed. "disfavor a religion"?

       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 consci! entious
believer.  A much more candid response, I think, is to say that some
discrimination is justifiable and concede that justification may only be

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 justi! ce 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

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
tod! ay.

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

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