Academic journal article Boston University Law Review

Some Thoughts on the First Amendment's Religion Clauses and Abner Greene's against Obligation, with Reference to Patton Oswalt's Character "Paul from Staten Island" in the Film Big Fan

Academic journal article Boston University Law Review

Some Thoughts on the First Amendment's Religion Clauses and Abner Greene's against Obligation, with Reference to Patton Oswalt's Character "Paul from Staten Island" in the Film Big Fan

Article excerpt

Twenty years ago, in his article The Political Balance of the Religion Clauses (The Political Balance), Abner Greene sketched out one of the more elegant solutions ever proposed for reading the Free Exercise Clause together with the Establishment Clause.1 According to Greene, because nonbelievers do not have "meaningful access"2 to the "extrahuman source of value"3 at the heart of religious belief, "the Establishment Clause should be read to forbid enacting legislation for the express purpose of advancing the values believed to be commanded by religion."4 In turn, and "[p]recisely because religion should be excluded from politics in this way,"5 Greene argued that, contrary to the Supreme Court's decision in Employment Division v. Smith,6 the Free Exercise Clause should be read to give religious believers a right, under some circumstances, to be exempt from generally applicable laws that burden their religious belief and practice.7 Greene's argument has been extremely influential in the legal academy,8 and it has certainly influenced my own thinking about how we ought to read the religion clauses.

Now, two decades later, Greene has brought his argument back on the scene as part of his new book Against Obligation, which concerns the nature of political and interpretive obligation more generally.9 It is great to see the argument return to the spotlight -- it is as though a studio has reissued a classic film to celebrate a milestone anniversary, or a rock band has embarked on a tour to play their most beloved album in its entirety.

But with the argument's new packaging comes new questions. Against Obligation ranges far beyond religion, and its argument is aimed broadly at supporting what Greene calls "permeable sovereignty" -- the notion that "[w]e should see all of our sources of value, of how to live," whether those be "religious, philosophical, family/clan/tribal, etc. -- as [not] subservient to the law . . . as at least presumptively on par with each other, as equal, even though in some circumstances we'll have to let our separate norms go and adhere to the law."10 According to Greene, society should recognize broad exit rights for individuals whose fundamental commitments -- religious or otherwise -- place them at odds with the general laws enacted by the majority.11

This broader argument leaves me wondering what role the traditional concept of religion plays in Greene's ideal political and constitutional world as compared to other types of fundamental commitments -- the commitments he refers to as "philosophical, family/clan/tribal."12 In my opinion, Greene is suggesting that legislators should give consideration to claims of exit made by anyone with a serious case for an exemption. Yet he also allows room for nuance in how legislators should evaluate these claims,13 which makes me wonder whether (some?) religious claims should be considered stronger than (some?) non-religious claims. When it comes to discussing judicially enforced exemptions to general laws, Greene revisits The Political Balance to argue for a judicially enforced right of exit for religious believers. As to whether such a right should exist for non-religious claims, I believe he suggests that such a right should exist, but he only "summarize[s] three arguments" in support of the notion and explicitly avoids "offer[ing] an extended argument" for it.14

At the end of Against Obligation I found myself unsure whether The Political Balance has any ongoing relevance in Greene's political and constitutional vision and, if so, what that relevance is. If, for example, a constitutional exemption right should exist for all fundamental commitments, then the unique balance of the religion clauses would appear not to matter anymore; the case for exemption would reside in a more general theory of political justice that would render the precise reading of the religion clauses largely irrelevant. Religion would in turn cease to be an important political or constitutional category. …

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