Esbeck Article re "Play in the Joints"

[Christopher C. Lund]

I thought this paper was very interesting.  It's basic point is that the Free Exercise Clause and Establishment Clause are just negations of government power, and so logically they can never -- no matter how broadly they are interpreted -- conflict with each other.  And I think, conceptually, that's completely right. 
 
But I think the reason no one thinks this way anymore is because the modern battles between Free Exercise and Establishment are of a form that, while its theoretically possible to give victories to both sides, doing so would strip government of too much of its power.  In say, Locke v. Davey, it's certainly possible as a conceptual matter to square the Establishment Clause claim (that the government cannot give theology scholarships) with the Free Exercise Claim (that the government cannot give scholarships without giving theology scholarships).  But the solution -- denying government the power to grant scholarships altogether -- is untenable now even with regard to the federal government, much less the state of Washington.
 
My interest was piqued by Esbeck's statement (in footnote 10) that he sees "one exception to the 'no conflict' logic" -- government-provided chaplains in prisons and armed forces.  But, the conflict there is also illusory, right?  There is indeed a way to square the Free Exercise Claim (the right to government-funded chaplains in prisons and the armed forces) with the Establishment Clause claim (that government-funded chaplains are unconstitutional).  It's just that the argument that prisons and the armed forces are themselves unconstitutional is so frivolous that Esbeck doesn't even consider it. 
 



From: gbaylor at clsnet.orgTo: religionlaw at lists.ucla.eduDate: Mon, 9 Oct 2006 16:41:08 -0400Subject: Esbeck Article re "Play in the Joints"




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. BaylorDirector, Center for Law & Religious FreedomChristian Legal Society8001 Braddock Road, Suite 300Springfield, VA 22151(703) 642-1070 x 3502(703) 642-1075 faxgbaylor at clsnet.orghttp://www.clsnet.org 
 
_________________________________________________________________
Express yourself - download free Windows Live Messenger themes! 
http://clk.atdmt.com/MSN/go/msnnkwme0020000001msn/direct/01/?href=http://imagine-msn.com/themes/vibe/default.aspx?locale=en-us&source=hmtagline 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20061010/97adcb5a/attachment.htm