Steve Jamar writes:
It is lawful to discriminate for and against religions. Indeed the
Constitution mandates EXACTLY that.
People keep saying things like this (cf., e.g., some recent posts by Mark
Graber), but it strikes me as a vast overreading of the Constitutional text
(and of the caselaw). Yes, the Establishment Clause discriminatorily prevents
the government from establishing religion. The government may "establish"
environmentalism or animal rights as the state's official ideology, but not
Christianity. Fine. But why should we take the leap from that to the
conclusion that the government must or even may discriminate among private
speakers or private entities based on their religiosity?
Likewise, the Free Exercise Clause discriminatorily protects religion against
discrimination. The government may single out rich people, short people, or
people who use marijuana for negative action; but it may not single out
religious people. Fine. But why should we take the leap from that to the
conclusion that the government must or even may discriminate in favor of
religion in other ways?
Certainly one can make normative arguments for why discrimination for or
against religion more generally is proper. The arguments for why equal
treatment of religion is proper are normative arguments, though I do think that
they are buttressed by the text of the Constitution (since "establishment of
religion," in my view, requires singling out religion for special benefit,
since ignoring something generally doesn't "establish" it, and since "free
exercise of religion" means at least exercise of religion free of government
penalties imposed because of your exercise of religion).
But textual arguments for discrimination in favor of or against religion, based
on supposed inferences from the Establishment Clause, strike me as quite
unsound. "Congress [or states] shall make no law respecting an establishment
of religion" simply doesn't mean that states are required to, or even allowed
to, discriminate among private individuals or groups based on religiosity.
(Arguments for government discrimination in favor of religion, based on the
text of the Free Exercise Clause, are a bit more plausible; but even those are
hardly dispositive.) If people want to make an argument that individuals' or
groups' religious speech or religious practice deserves to be discriminated
against, fine. But I see no basis for claiming that the constitutional text
authorizes or mandates such discrimination.
Eugene
Steve Jamar continued:
The government can "establish" lots of things (or seek to), e.g.,
patriotism, individualism, tolerance. But it cannot establish
religion. It therefore must discriminate in what it chooses to
establish on the basis, at least in part, of religion.
The government can ban all sorts of behavior and can zone property in
all sorts of ways. But it cannot zone in such a way as to exclude all
religious buildings or activity. It could prohibit all multiple-unit
dwellings. Or all heavy industry. Or all educational institutions.
But it can't do that with respect to religion. This is discrimination
for religion.
Discrimination is not a sufficiently robust concept to handle the
inevitable conflicts and nuances involved in religious cases.
The principles of non-discrimination and equal treatment have their
place in constitutional religious freedom analysis, but they are not
sufficient. Nor is accommodation. Nor is coercion. Nor is separation.
The tension exposed in no-taxpayer support v. non-discrimination in the
voucher cases can be resolved either by favoring one theory over the
other a la the Rosenberger case (favoring "equal treatment" over "no
funding") or through some other balancing approach which forthrightly
recognizes the conflict and chooses not to go one way or the other on
the basis of selecting which principle has priority, but rather
choosing, in the Justice O'Connor mode, a nuanced, case by case
analysis in which such principles play a part in the decision.
Of course this does not give us bright-line tests, which in itself
creates problems.
But this, it seems to me, is the very nature of the beast and it cannot
be tamed or beaten out of it no matter how many of us try to dance on
the head of that metaphorical pin of logical consistency.
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8428
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
"The only things truly worth doing cannot be accomplished in a single
lifetime."
Prof. Goler Teal Butcher, after Reinhold Neibuhr
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