George, Robert P.

English

Loyola Marymount University

Loyola Marymount University and Loyola Law SchoolDigital Commons at Loyola MarymountUniversity and Loyola Law SchoolLoyola of Los Angeles Law Review Law Reviews11-1-1998Judicial Review and the Religion Clauses: AResponse to Professor GreenwaltRobert P. GeorgeThis Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola LawSchool. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@LoyolaMarymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu.Recommended CitationRobert P. George, Judicial Review and the Religion Clauses: A Response to Professor Greenwalt, 32 Loy. L.A. L. Rev. 59 (1998).Available at: https://digitalcommons.lmu.edu/llr/vol32/iss1/5JUDICIAL REVIEW AND THE RELIGIONCLAUSES:A RESPONSE TO PROFESSOR GREENAWALTRobert P. GeorgeAt the heart of Professor Greenawalt's understanding of the re-ligion clauses is the idea that individuals and minorities need, and areentitled to, the protection of courts exercising fairly broad discretionto invalidate, or exempt members of minority faiths from, laws en-acted by majorities that are hostile or, at least, insensitive to their le-gitimate interests. This idea is widely shared in the culture and, es-pecially, in the legal academy, where it enjoys the status ofsomething like an orthodoxy. I do not suggest that it is a foolish ordishonorable idea. I have certainly felt its attraction myself.Indeed, it is easy to think of instances in American history whencourts have come to the aid of oppressed or exploited individuals ormembers of minority groups. It is, however, also easy-all tooeasy-to recall cases in which courts have come to the aid of theiroppressors or exploiters--cases in which the institutions of demo-cratic governance at the state and federal level were effectively dis-abled by judges from preventing or rectifying injustices. Our na-tion's experience with judicial review confirms the adage, "the powerto do good is the power to do evil." Yes, thankfully, there was aBrown v. Board of Education;' but there was, alas, also a Dred Scottv. Sandford.2 Yes, there was a Pierce v. Society of Sisters3 and aWest Virginia State Board of Education v. Barnette;4 but there wasalso a Lochner v. New York5 and an Adkins v. Children's Hospital.61. 347 U.S. 483 (1954).2. 60 U.S. (19 How.) 393 (1856).3. 268 U.S. 510 (1925).4. 319 U.S. 624 (1943).5. 198 U.S. 45 (1905).6. 261 U.S. 525 (1923).LOYOLA OFLOSANGELES LAWREVIEWIn short, the historical record is mixed. And then consider the case ofRoe v. Wade. In striking down laws prohibiting abortion, did theSupreme Court advance the cause of women's freedom? Or did itexpose their innocent unborn offspring to virtually unrestricted lethalviolence? It would seem entirely to depend on one's moral view ofthe status of human beings in the embryonic and fetal stages of theirdevelopment.8 While judges certainly are entitled to have views onthis issue, it is unclear why their views should matter more than thoseof other conscientious citizens.The idea of courts exercising more or less free-wheeling judicialreview as a check on legislative oppression both overestimates judi-cial wisdom and virtue and underestimates the capacity of the peopleand their elected representatives to act on the basis of principle,rather than prejudice or self-interest.9 No idea in contemporary con-stitutional theory is more mischievous, in my view, than RonaldDworkin's juxtaposition of courts, as "forums of principle" con-cerned with the protection of rights, with legislatures, as forums ofpolicy charged to advance the general welfare-conceived in someutilitarian or other aggregative fashion-subject to the enforcementby judges of rights as trumps against "general utility," "aggregatecollective good," or some such concept.' 0 This idea teaches judgestruly to think of themselves as "princes "-indeed, "philosopherkings"--and teaches the people as a whole that democracy is merelyabout the clash of interests, rather than deliberation about justice andthe common good." It promotes as virtues the very vices to which7. 410 U.S. 113 (1973).8. Compare Jed Rubenfeld, On the Legal Status of the Proposition that"Life Begins at Conception," 43 STAN. L. REV. 599 (1991), with Robert P.George, Public Reason and Political Conflict: Abortion and Homosexuality,106 YALE L. J. 2475, 2486-595 (1997), and Robert P. George, Law, Democ-racy, and Moral Disagreement, 110 HARV. L. REv. 1388, 1394-400 (1997).9. See CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT(1996); JEREMY WALDRON, LAW AND DISAGREEMENT (forthcoming).10. See RONALD DWORKIN, The Forum of Principle, in A MATTER OFPRINCIPLE 33 (1985); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 91, 191(1977). For a sustained critique of Dworkin's argument, see ROBERT P.GEORGE, MAKING MEN MORAL: CIVIL LIBERTIES AND PUBLIC MORALITY 83(1993).11. On the "deliberative" conception of democracy, see AMY GUTMANN &DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT: WHY MORAL[Vol. 32:59JUDICIAL REVIEWjudicial and legislative officers, respectively, are most prone. Courtsare, to be sure, or should be, forums of legal principle; but legisla-tures are, or should be, forums of moral principle for the making oflaws.'2To be sure, people often disagree about matters of moral princi-ple. So, the political system must include a procedure for resolvingsuch disputes. It is a mistake, however, to suppose that a procedurewhich reserves high matters of moral principle to courts is morelikely to generate correct decisions.1 3Moreover, I think it is time to acknowledge candidly that thereservation of such matters to the judiciary effectively vests vastpower in the hands of an elite-indeed, an elite very likely to be re-sponsive to elite interests and opinion when they are in conflict withpopular opinion, as they often are today. For example, if one pollsthe faculty of Princeton University on morally-charged political is-sues such as whether to abolish the death penalty or institute "same-sex marriage," and then polls the first 700 people listed in the Tren-ton phone directory, one will almost certainly get very different re-sults. If such issues are to be freely resolved by the judiciary in theabsence of clear constitutional warrant, can there be any doubt aboutwhich side benefits? It is not that judges will come down on themore liberal side every time in what Justice Scalia labeled the "Kul-turkampf" in a famous dissent.14  But it is more than likely thatwhere judges rob one side or the other of a victory at the polls, theywill rob the morally more conservative side.As applied to religion, I think we have to take seriously the cul-tural clash between religious and secularist world views. The latter,which is plainly dominant in the elite sector of the culture, obtainsbenefits in presenting itself as a kind of "neutrality," rather than asan ideology or world view that competes with others. If courts are toenforce a doctrine of neutrality, they must, in fairness, avoid treatingCONFLICT CANNOT BE AVOIDED IN POLITICS, AND WHAT SHOULD BE DONEABOUT IT (1996).12. Cass Sunstein puts the point well: "In American government and in allwell-functioning constitutional democracies, the real forum of high principle ispolitics, not the judiciary-and the most fundamental principles are developeddemocratically, not in courtrooms." SUNSTEIN, supra note 9, at 7.13. See WALDRON, supra note 9.14. See Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting).November 1998]LOYOLA OFLOSANGELESLAWREVIEWsecularism as if it were neutral. They must, in other words, enforceneutrality as between secularism and religion. Even if judges under-stood and were willing to do that, it would be difficult in many casesto know what such neutrality requires, or even whether it is possible.Where it is not possible, society faces a choice between secularistand religious values.Now, in my decidedly non-fideistic Catholic view of things,such a choice need not be "unreasoned." Whether the issue is humancloning, assisted suicide, parental rights, or whether to remove "un-der God" from the Pledge of Allegiance, or "in God we trust" fromthe coins, I am prepared to engage in the argument with my secularistfellow citizens. Let the matter finally be resolved, however, by theinstitutions of self-government-what Sunstein calls "the real forumof principle"'15 in a democratic republic-not, in the absence of con-stitutional warrant, by the courts.15. SUNSTEIN, supra note 8, at 60.[Vol. 32:59

Judicial Review and the Religion Clauses: A Response to Professor Greenwalt

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Judicial Review and the Religion Clauses: A Response to Professor Greenwalt

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