Religion and Theistic Faith: On Koppelman, Leiter, Secular Purpose, and Accomodations

What makes religion distinctive, and how does answering that question help us answer questions regarding religious freedom in a liberal democracy? In their books on religion in the United States under our Constitution, Andrew Koppelman (DefendingAmerican Religious Neutrality) and Brian Leiter (Why Tolerate Religion?) offer sharply different answers to this set of questions. This review essay first explores why we might treat religion distinctively, suggesting that in our constitutional order, it makes sense to focus on theism (or any roughly similar analogue) as the hallmark of religious belief and practice. Neither Koppelman nor Leiter focuses on this, in part because it seems to exclude nontheistic religions that are part of the American fabric. I think this is a mistake, and will explain why

Kiryas Joel and Two Mistakes about Equality

In 1948, Rebbe Joel Teitelbaum founded the congregation Yetev Lev D\u27Satmar in Williamsburg, Brooklyn. Over the next twenty-five years, the Satmar Hasidic sect grew, and members started thinking about leaving the urban, heterogeneous setting for a place where they could live in relative isolation. In 1974, Satmar families began leaving Brooklyn for upstate New York. They purchased property in the Town of Monroe, and later, after a zoning dispute with the Town, incorporated as the Village of Kiryas Joel. As of 1990, approximately 10,000 Satmar Jews lived in or around the Village. The Satmars dress in conformance with a semiformal code; they speak Yiddish; they resolve most of their disputes in Satmar courts; their marriages are prearranged. Further, the Satmars educate almost all of their children in private, religious schools, with boys and girls educated separately. Public funds for educating handicapped children may not be used in those private, religious schools, so to qualify for such funds, the Satmars of Kiryas Joel experimented with sending their handicapped children to the heterogeneous county schools. But the Satmar children had a hard time dealing with immersion in the non-Satmar world. \u27 Parents of most of these children withdrew them from the Monroe-Woodbury secular schools, citing \u27the panic, fear and trauma [the children] suffered in different. The Satmars then lobbied the New York legislature for a special school district. The Satmars did not argue that religious doctrine required separation; rather, they contended that separate schooling would alleviate the emotional trauma of their handicapped children. In 1989, the New York legislature responded by constituting the Village of Kiryas Joel as a separate school district, granting all the powers and duties of a union free school district. \u27 Governor Cuomo indicated that the action was a good faith effort to solve th[e] unique problem faced by the Satmars. But in Board of Education of Kiyas Joel Village School District, Grumet [Kiryas Joel], the United States Supreme Court held the law unconstitutional. There is reason to believe, however, that the Court, by failing to pay proper attention to the partial exit problem, made two mistakes about equality, both of which stem from a similar brand of constitutional myopia-emphasizing the virtues of the unum while seeing only the destructive aspects of the e pluribus. The Court\u27s first mistake about equality was to condemn the New York law for promoting segregation over integration; the Justices referred to the Establishment Clause, but seemed animated by broader Equal Protection Clause values. There are two aspects to the Court\u27s concern with segregating citizens by religion. The first relies on the apprehension that citizens who share a common religion will exercise public power in an unconstitutional fashion. The second relies not on how such delegated public power will be used, but rather on the state\u27s drawing a district line around a village known to be populated by a religiously homogeneous group of citizens. I respond to these concerns in Part I. First, in Part L.A, I set forth the complete exit model. Many people can accept a model of complete exit: A community should have a significant berth of religious freedom if it exits completely and seeks a purely private domain of action. I then turn to the partial exit problem: Even for those who accept the complete exit model, it is harder to accept a community\u27s wanting the rewards of both the private realm (living separately as a religious community) and the public realm (receiving certain accoutrements of public power at the same time). If the Satmars truly want to be alone, one might argue (and Kiryas Joel seems to imply), then let them forgo governmental power that comes more appropriately to groups that accept the integrationist model. The first half of Part I.B responds to the concern that citizens who share a common religion will exercise public power in a religious way. The second half of Part I.B responds to the argument that states may not draw political lines around groups of citizens known to share a common religion, i.e., that states may not enact religious gerrymanders. Although a law favoring one religious sect over others should be invalidated, there is no evidence that New York\u27s law exhibited such favoritism. This is the Court\u27s second mistake about equality, which I discuss in Part II. Part IIA responds to the argument that relies not on the absolute unconstitutionality of a governmental benefit for the Satmars, but rather on the conditional concern that New York might not grant a similar benefit to other groups. Second, in Part II.B, I suggest that the Court\u27s opinions on this point are best understood as relying on a more generalized concern with special governmental benefits for racial or religious groups. Part III sketches the contention that there are other, constitutional measures for combating voluntary religious or racial separation. The government speech model permits government great power to encourage people to live together in heterogeneous communities

Liberalism and the Distinctiveness of Religious Belief

Finding the appropriate sweet spot for religion’s role in the state and how state action may affect the lives of religious people continues to be elusive. Cécile Laborde’s ambitious book Liberalism’s Religion comes down firmly on the side of seeing religion as not distinctive, even in a liberal democracy. To the extent that nonestablishment and free exercise norms should prevail, they should prevail insofar as we can disaggregate religion into components that it shares with nonreligious belief and practice. In this review essay, I advance a position on which Laborde spends little time in her book — religion is distinctive because for religious people, God is at the center of their beliefs and practices, and there’s nothing else like it. In so doing, I suggest that there are good reasons for liberal democracy generally and the U.S. constitutional order specifically to respond to this sociological fact with nonestablishment and free exercise norms that are distinctive to religious belief and practice. Liberalism’s religion need not be disaggregative; it can remain true to core liberal principles while taking seriously the role that God plays in the lives of the devout

State Speech and Political Liberalism

Jim Fleming and Linda McClain have written an impressive book on the responsible exercise of rights, which flows from prior writing by each.Their title, Ordered Liberty, is a bit of a misnomer, however. When one thinks of that phrase, one thinks of the ways in which we balance liberty against order, i.e., against security, police power, controlling the excesses of liberty. Responsibility in the exercise of rights is an aspect of how rights are orderly, but the major hard cases involving rights are hard because significant claims of harm are in play. Think of much of constitutional criminal procedure, free speech cases that are tough because speech causes serious harm, not because it doesnot, and abortion rights jurisprudence. Fleming and McClain have much to say about what it means to exercise rights responsibly, but little to say about the state\u27s claims of order in the sense of preventing or redressing serious harm to others

‘Not in My Name’ Claims of Constitutional Right

We have a constitutional right against the state forcing us to be associated with expression with which we do not wish to be associated. The freedom of expressive association is not stated in our Constitution’s text. Rather, it is derived from various provisions of the First Amendment. As the freedom of speech protects, among other things, our right to shape how we present ourselves to the world, so does the freedom of expressive association protect us from the state shaping us by connecting us to ideas not of our choosing. Our freedom of expressive association allows us to claim an idea as our own, and to say “that idea is not mine . . . and you may not say it in my name.” This “not in my name” conception of constitutional right has iterations in several areas of First Amendment law: compelled speech, compelled subsidies for speech, and the Establishment Clause. Compelled support for government speech, though, is valid, because the state speaks in the name of its citizens. The understanding of expressive association as undergirding “not in my name” claims of constitutional right allows us to solve two lingering problems of misattribution in the compelled subsidies for speech and Establishment Clause case law. But whether or not misattribution is present, we maintain a broad presumptive right against the state’s advancing ideas in our name