In a forthcoming book, which has already transformed the field and is available for preorder now, Marc DeGirolami divides theoretical work on religious freedom into three schools or camps: monist, pluralist, and skeptical. That typology is accepted by many scholars. Monists are thought to believe that law in the area can be attractively explained by a single value or principle, pluralists are seen to argue that only multiple concerns can account for the full range of religious freedom outcomes, and skeptics reportedly contend that a coherent theory of religious freedom doctrine is impossible. DeGirolami takes a new cut at this typology, noticing that some writers approach the task with a sense of tragedy, whereas others have a more sanguine disposition.
Here, I want to explore a different feature of this threefold scheme—its intersection with politics. A notable feature of the typology is that it has been understood to cut across political affiliations. (When I use the term politics here, I mean to refer to the recognized affinities that characterize wider policy conversations nationally.) Each of the three schools has been thought to contain both political liberals and political conservatives. Often, methodology and party politics have intersected in unusual and interesting ways, on this way of thinking. Monism is perhaps the least politically diverse, but if Justice Scalia counts as a member of that school, then it too spans the aisle.
Two questions come to mind about this familiar understanding of the interactions between methodology and politics among religious freedom theorists. First, has this conceptualization of the field ever been correct? Has the role of politics been as complicated and unpredictable as it suggests?
If it has captured a measure of the truth, a second question is whether it still usefully describes the literature, or whether we are witnessing a realignment. Certain debates have moved to the foreground — such as the conversation over whether religion deserves special constitutional protection as compared to deep secular commitments of conscience — and positions within those debates do not seem to be easily captured by the old typology. Yet those positions do seem to track wider political affinities more readily than did the customary choice among monism, pluralism, and skepticism. For example, liberals tend to think that religion is not special, conservatives usually argue that it is, and moderates believe that it only sometimes should be protected like secular conscience. Does this shift, if it is happening at all, suggest a different kind or degree of politicization within the field of religious freedom theory? Is any such shift clarifying or obfuscatory?
The Court has granted cert. in Windsor, concerning the federal Defense of Marriage Act, and Perry, concerning California’s Proposition 8. The religion overtones of both cases are obvious and make them of great interest to CLR readers. Here is Adam Liptak’s coverage in the New York Times.
For any readers who are local and free on Sunday morning: I will be giving an informal talk at Grace Church in the Village. Here is the church’s description:
“Do religious organizations have special constitutional protection from government regulation? Professor Tebbe will explain and lead discussion on recent Supreme Court rulings on employment discrimination and challenges to the Affordable Care Act.”
Warm thanks to Marc DeGirolami and Mark Movsesian for including me this month. I am looking forward to participating in this terrific forum.
It is often said among scholars of religious freedom that there is no secular Establishment Clause. When the government speaks, according to this view, the only real constitutional restriction is the rule against religious endorsement. So while public officials may not declare that “America is a Christian nation,” they may endorse environmentalism or denigrate smoking. Religion has special constitutional status in this area, or so it is often assumed.
Likewise, scholars and judges writing about free speech commonly say that the only enforceable restriction on government speech is the rule against religious endorsement. In the Summum decision, for example, the Supreme Court reiterated that the Speech Clause simply does not apply to government expression, and it implied or assumed that the only other constitutional restriction on official endorsement of ideas is the Establishment Clause.
Is this assumption—which is commonly repeated, although not commonly interrogated—actually correct? In a draft article available on ssrn, I argue that it is mistaken. In fact, government speech is properly limited in multiple situations by multiple constitutional doctrines, rooted variously in equal protection, due process, and free speech itself. To take only the most obvious example, it would be unconstitutional for the government to declare that “America is a White nation,” even if that statement carried no material consequences. In the piece, I give additional examples concerning electioneering, same-sex marriage exclusions, political gerrymandering, and messages about reproductive decisions. From these examples, and from the principles supporting them, I derive a constitutional theme called government nonendorsement.
I also draw out implications of this argument for theoretical debates over political morality, free speech, and religious freedom. With regard to the last, the principle of government nonendorsement bears on the pressing question of whether religion enjoys special constitutional solicitude. Mostly, my argument supports the position that religion is not special, but it also leaves room for the possibility that some constitutional values barring government expression on religion do not have secular counterparts.