The quid pro quo theory

Newsom Michael mnewsom at
Wed Jun 16 13:45:08 PDT 2004

See my comments below.
-----Original Message-----
From: religionlaw-bounces at
[mailto:religionlaw-bounces at] On Behalf Of Berg, Thomas C.
Sent: Friday, June 11, 2004 5:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: The quid pro quo theory
Eugene, I agree that very "global" quid pro quo theories -- like "broad
Establishment Clause, broad Free Exercise Clause" -- do not spread their
benefits to all religions equally.  (For example, I think that "broad
establishment clause, broad free exercise" tends to protect or benefit
minority or outsider religions, although I'd qualify that statement in
some important ways.  I'm thinking about this now because I'm writing a
piece about minority religions.)
I would love to see a draft of your
article!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!  (I am going to do a piece
on American Roman Catholicism in a Protestant Empire, and another piece
on what I see as the anomaly of the Black Church, or maybe I'll put the
two together (and throw in Lutherans and some others) and turn it all
into a book.)
But more specific quid pro quo arguments, it seems to me, can rest on
real connections.  For example: "Because public schools cannot include
religious teaching in their curriculum, there should be special concern
to protect religious private schools and families' ability to use them
if they conscientiously wish to have religoius instruction in their
children's education."  That connection is still not perfect -- not all
families who want religious instruction in education will belong to a
denomination that operates religious schools -- but the connection is
real because there are indeed many families who make such a choice
between public education and private religious schools.
Interesting point.  I wonder just what protections those private
religious schools need.  I think that if parents, the members of church
X, which does not operate religious schools, wanted their children to
have religious instruction in public schools (which, presumably, would
NOT be instruction in the tenets of church X), they could just as easily
accomplish their objective by having their children attend the religious
schools of another religious group.  Indeed, they might be better off if
forced to proceed in this fashion because they could choose a private
religious school operated by a religious group whose teachings that most
nearly mirror those of church X.  Beyond Zorach-type released time, why
does the state need to do more?
As for more global quid pro quo notions:  although of course there are
many, many religious views, nevertheless there is a general category
called "religion" that is singled out for distinctive treatment in the
Constitution and therefore may require distinctive treatment by
government actors.  Even if a general quid pro quo approach doesn't
benefit all faiths equally, it seems to me that it can have the
advantage of setting forth an approach that doesn't treat religious
activity just the same as every other activity, but is principled in the
ways it departs from that "sameness" treatment.  For example, the Lee v.
Weisman passage -- "preservation and transmission of religious beliefs
and worship is a responsibility and a choice committed to the private
sphere, which itself is promised freedom to pursue that mission" --
gives a principled (though certainly disputable) reason for treating
religious activities distinctively in various legal situations.  When
someone asks, for example, "Why should there be exemptions from law just
for religious conduct?," a possible answer is, "It's part of this
overall approach to religion that is sensible and justifiable, for [X]
reasons."  I think that the fact that one can point to other places
where religion is treated differently helps make the overall approach
more sensible and justifiable (though, of course, still open to
More on the point of the institutional structure, goals, and objectives
of various religious groups: it has to be true, I think, that no matter
what legal regime is in place, some religions will fare better than
others because they are more aggressive, larger, more powerful
(culturally, economically and socially).  I think that the proper role
of the law is to restrain the powerful, majoritarian, religions so that
there is "space" for the other religions to maintain themselves.  In
other words, solicitude for minority religions strikes me as a
constitutional imperative.  Powerful religions can largely take care of
Tom Berg
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