RE: The quid pro quo theory
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 running. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 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? Eugene ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
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). Chip Lupu 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 running. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 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? Eugene ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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 (202) 994-7053 [EMAIL PROTECTED] [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: The quid pro quo theory
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: http://personal2.stthomas.edu/GCSISK/Siskwebpagestuff/Sisk.Searching.Soul.pd f (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. Greg Sisk -Original Message- From: Lupu [mailto:[EMAIL PROTECTED] 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). Chip Lupu 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 running. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 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
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.) 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. 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 dispute). Tom Berg _ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Wed 6/9/2004 11:29 PM 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? Eugene application/ms-tnef___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: The quid pro quo theory
Sorry, but I don't see any of this as demonstrable or even as really very relevant to the interpretation of or to a consideration of the value of the religion clauses. 1. Free exercise is a valuable thing regardless of a law insuring it which affects various groups differently. The different impacts could well have a lot more to do with the content of the religion than the content of the guarantee of freedom to do it. Some beliefs and practices are simply going to be less likely to be affected by state actions, and therefore less likely to need protection from those state actions. To say one group benefits more than another seems to me to be worse than irrelevant -- it seems to be missing the essential point and seems to be likely to stir up trouble. Equality-thinking gone nuts. Or govt-focused thinking gone way too far. Or even construing an insuring provision as a grant. 2. Non-establishment similarly affects various groups in various ways. But the only way to say one group benefits more is to posit that there is a normal group against which one can or should measure. 3. How can one compare religious freedom in one state against another, except in some very crude ways, or except by a priori defining one's values into the equation? Does Italy not have religious freedom? Are non-Christian religions harmed by Swiss law (at least pre-reform law)? Simply non-starters for me. Gathering info and discussing things in context is one thing. Positing general theories strikes me as beyond sensible. But I still have those old practice roots which have not fully withered away despite two decades in academia. 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 Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think. - Martin Luther King Jr., Strength to Love, 1963 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
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? Eugene Alan Brownstein writes: There are two religion clauses. They should not be interpreted in isolation from each other without regard to their impact on religion as a source of values and beliefs and as a cultural and political influence on society. Proponents of a rigorously enforced Establishment clause ought to recognize the limits placed on religion by this mandate and should support rigorous free exercise protection for religious institutions and practice. Similarly, proponents of a vigorously enforced free exercise jurisprudence should appreciate the advantages constitutional protection provides and accept Establishment Clause restrictions on the state promotion of religion. That's only part of the picture in interpreting the religion clauses, but it is certainly an important part. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
