The quid pro quo theory
Sisk, Gregory C.
GCSISK at stthomas.edu
Wed Jun 16 15:53:34 PDT 2004
The "grid" or integrated approach to the Religion Clauses (or more
accurately, singular Clause) articulated by Chip Lupu is a most valuable way
to explore the clauses.
With acknowledgement of our considerable indebtedness to Chip, our
forthcoming Ohio State Law Journal empirical study of religious liberty
decisions in the lower federal courts further develops each of those four
grids as models -- Pro-Religion (Weak EC, Strong FE), Anti-Political (Strong
EC, Strong FE), Judicial-Restraint (Weak EC, Weak FE), and Pro-Secular
(Strong EC, Weak FE) -- and tests them in practice. The results were rather
interesting (i.e., Catholic judges almost significant on the Pro-Religion
Model, while Jewish judges were signficantly correlated with the
Anti-Political Model). Although the reprints have been slow to arrive, a
link is set out below:
(Note that if the link breaks across a line in your e-mail, you may need to
cut and paste it into your browser for it to work.)
Michael's description of where a person with a particular interest would be
located among those models strikes me as correct, with the exception of
describing those in the Weak EC, Weak FE category as only interested in
protecting the prerogatives of the majority. Although this is not the
category into which I would place myself (while the models are by nature
somewhat crude, I'd probably fall into the Pro-Religion category), I cannot
imagine that those who adopt the Weak EC, Weak FE approach on principle
would see themselves merely as endorsing the tyranny of the majority.
Rather, giving each position its full due, this is best understood as a
Judicial-Restraint approach that reflects a distrust of the judiciary and an
attendant preference for democratic institutions including the capacity of
those institutions to provide protection to minorities.
From: Lupu [mailto:iclupu at law.gwu.edu]
Sent: Wednesday, June 16, 2004 3:42 PM
To: Law & Religion issues for Law Academics
Subject: RE: The quid pro quo theory
The piece to which Michael Newsom refers is The Trouble with
Accommodation, 60 GW L Rev. 743, 779-781(1992). But the 4th
category is Weak EC, Weak FE (Michael accidentally wrote the 4th
one as a repeat of the third).
On 16 Jun 2004 at 16:26, Newsom Michael wrote:
> I apologize for responding to this post at this late date. However, I
> want to refer everybody to Lupu's piece (the name of which escapes me)
> in which he establishes a "grid" analysis of the two clauses.
> If I understand him aright, it goes something like this:
> (1) Strong EC, Strong FE
> (2) Strong EC, Weak FE
> (3) Weak EC, Strong FE
> (4) Weak EC, Strong FE.
> Those interested in protecting minority rights might find themselves
> in group (1).
> Those interested in protecting the prerogatives of the majority might
> find themselves in group (4).
> Those interested in promoting religious values, and the role of
> religion in public life might find themselves in group (3).
> Those interested in keeping religion at bay or in check might find
> themselves in group (2).
> These four pairings capture rather nicely the dynamic and the dilemma
> of the Religion Clauses. Add a dash of Protestant Empire (or any
> other large historical construct if this one doesn't work), a pinch of
> race (particularly as it intersects with religion), and we are off and
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
> Sent: Thursday, June 10, 2004 12:30 AM
> To: Law & Religion issues for Law Academics
> Subject: The quid pro quo theory
> I've always been puzzled about this "quid pro quo" theory of the
> Religion Clauses. There is no "religion as a source of values and
> beliefs"; there are *religions* (or denominations) as a source of
> values and beliefs. Many of them may share many values, but they will
> also differ on many values and goals. The members of the religions
> will be different, too. True, there are some cultural battles in
> which secularists are aligned on one side and religious observers of
> many faiths on another. But those are only a small fraction of all
> potential battles over values and beliefs, it seems to me; and even in
> those, a person's religious denomination is likely to be as important
> as his felt religiosity.
> Is there much reason to believe that the religions -- or, perhaps more
> importantly, religious believers -- benefited by rigorous Free
> Exercise Clause protection will be the same as the ones burdened by a
> rigorously enforced Establishment Clause? Historically, Catholics
> have been quite burdened by a rigorous Establishment Clause, and have
> gotten very few benefits from the Free Exercise Clause, even when it
> was relatively rigorous. (They might have gotten some benefits from
> religious accommodations, such as the sacramental wine exemption, but
> not from the Free Exercise Clause as such.) On the other hand, the
> Amish have gotten some benefits from a rigorous Free Exercise Clause,
> but it's not clear that they have been much burdened by the
> Establishment Clause, even when it was relatively rigorous.
> I'm not even sure that the benefits of a rigorous Free Exercise Clause
> and the burdens imposed by a rigorous Establishment Clause will even
> out if you aggregate the effects on all the religions. But I don't
> see how such an aggregation would be proper. Or am I mistaken?
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
ICLUPU at main.nlc.gwu.edu
ICLUPU at law.gwu.edu
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
More information about the Religionlaw