Academic journal article Albany Law Review

Religious Liberty as a Positive and Negative Right

Academic journal article Albany Law Review

Religious Liberty as a Positive and Negative Right

Article excerpt

I. INTRODUCTION

In several articles Professor Fred Gedicks has argued that the rules governing the religious liberty interests vary depending on the application and functionality of that interest. For example, Gedicks writes in his "Two-Track Theory" that when the government is distributing benefits to a large class of individuals, neutrality should be the controlling paradigm, such that religious entities can participate in the receipt of benefits, and even use those benefits for religious purposes, without violating the Establishment Clause. (1) Conversely, when the government is speaking itself or advancing its own policy goals in a government administered program, that separationism should be the dominant paradigm. (2)

Gedicks schema, offered as an interpretative model for the Establishment Clause, is a refinement of a common approach to religion clause analysis generally: divide and conquer. (3) Conquer the religion clause analytical conundrum by dividing the clauses according to the values represented. A brief glance at the religion clauses quickly reveals that there are two clauses--free exercise and nonestablishment--suggesting (at least) two values. The fact that the religion clauses contain two or more principles lends itself to a comparative model.

The modern Supreme Court has struggled with whether the clauses represent primarily a unitary value, complementary values, or distinct values that may be at tension. On one hand, Justice Wiley Rutledge wrote in his dissent in Everson v. Board of Education that "'[r]eligion' appears only once in the [First] Amendment. But the word governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid 'an establishment' and another, much broader, for securing 'the free exercise thereof.'" (4) Relatedly, Justice William Brennan, a leading student of the religion clauses on the Court, viewed the clauses as promoting complementary values, declaring that the Establishment Clause was "a coguarantor, with the Free Exercise Clause, of religious liberty." (5)

More frequently, the Court has seen the clauses as promoting distinct values, though interrelated, that sometimes are in conflict. (6) The Court has said that the nub of a free exercise violation rests on coercion. (7) With respect to the Establishment Clause, however, the Court has generally been unwilling to restrict the purposes so narrowly. As Justice Hugo Black said for the Court in Engel v. Vitale:

   Although these two clauses may in certain instances overlap, they
   forbid two quite different kinds of government encroachment upon
   religious freedom. The Establishment Clause, unlike the Free
   Exercise Clause, does not depend upon any showing of direct
   governmental compulsion and is violated by the enactment of laws
   which establish an official religion whether those laws operate
   directly to coerce nonobserving individuals or not. (8)

The resistance of a majority of the Court to cabin the Establishment Clause value(s) too narrowly is exemplified in the exchanges between the majority, concurring, and dissenting opinions in Allegheny County v. ACLU and Lee v. Weisman that offered competing analytical paradigms of endorsement or coercion. (9) If all that the Establishment Clause protected against was coercion, remarked Justices Sandra O'Connor and Harry Blackmun in the respective cases, then the Establishment Clause would be superfluous to the Free Exercise Clause, making the former a "redundancy." (10)

Thus, the Establishment Clause must serve an additional function beyond enhancing religious exercise. But merely acknowledging an additional purpose behind nonestablishment begs the question of whether it is still chiefly a different way to get to a common goal. The debate continues over whether enhancing religious liberty remains the primary unifying value of both clauses, such that those secondary values represented in Establishment Clause are subservient to the primary goal of enhancing religious exercise. …

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