Esbeck Article re "Play in the Joints"

[Greg Baylor]

I thought list members might be interested in this:

 

Carl H. Esbeck, "Play in the Joints Between the Religion Clauses" and Other
Supreme Court Catachreses, 34 Hofstra L. Rev. 1331 (2006).
http://ssrn.com/abstract=934410

 

Abstract:   Consistent with its fumbling of late when dealing with cases
involving religion, the U.S. Supreme Court has taken to reciting the
metaphor of "play in the joints between the Religion Clauses."  This manner
of framing the issue before the Court presumes that the Free Exercise and
Establishment Clauses run in opposing directions, and indeed will often
conflict.  It then becomes the Court's task, as it sees it, to determine if
the law in question falls safely in the narrows where "there is space for
legislative action neither compelled by the Free Exercise Clause nor
prohibited by the Establishment Clause."  This conception that the
free-exercise and no-establishment texts are in frequent tension, and at
times are in outright war with one another, is quite impossible.  Each
substantive clause in the first eight amendments to the Bill of Rights was
designed to anticipate and negate the assumption of certain powers by the
national government-a government already understood to be one of limited,
enumerated powers.  Thus, for example, the free-speech clause further
limited national power and the free-press clause did so as well.  These two
negatives on power-speech and press-can overlap and thus reinforce one
another but they cannot conflict.  Simply put, it is logically impossible
for two negations of a government's delegated power to conflict.  Similarly,
the free-exercise provision further restricted the nation's powers and
no-establishment did likewise.  These two negatives can overlap and thereby
doubly deny the field of permissible governmental action, but they cannot
conflict.  To be sure, each clause in its own way works to protect religious
freedom.  And when circumstances are such that the scope of the clauses
overlap, they necessarily compliment rather than conflict with each other.
However, the Court's imagining these two negations of governmental power as
frequently clashing is at a conceptual level simply not possible. 

 

Gregory S. Baylor
Director, Center for Law & Religious Freedom
Christian Legal Society
8001 Braddock Road, Suite 300
Springfield, VA 22151
(703) 642-1070 x 3502
(703) 642-1075 fax
gbaylor at clsnet.org
http://www.clsnet.org <http://www.clsnet.org/>  

 

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