Religious Establishment and Autonomy
Koppelman, Andrew, Constitutional Commentary
In Volume I of Religion and the Constitution, Kent Greenawalt explains the rationale for non-establishment of religion, in part, by claiming that "personal autonomy is most fully recognized and the flourishing of religion itself is best served if the government does not sponsor religious understandings and practices." (1) This sentence ends with a parenthetical promising that this subject will be addressed in Volume II. In that volume, he defines autonomy as "unfettered freedom to choose among various options, whether or not an absence of freedom restricts one's exercise of his convictions" (p. 9). He then writes: "In this sense, even if every citizen is free to practice religion as she chooses, including the freedom to practice no religion, full autonomy of choice is limited if the government 'stacks the deck' in favor of one religion or all religions" (p. 9).
Just how is the freedom to choose among options fettered by the government supporting one or another religion? Greenawalt's explanation of this point is fragmentary and inconclusive. That such a superb scholar falters on such a fundamental point suggests to me that autonomy is a mask for other concerns that Greenawalt is reluctant, for respectable but ultimately unpersuasive reasons, to spell out.
The most obvious objection to an autonomy-based argument against "deck-stacking" is that it makes no sense to denounce the deliberate creation of choice-influencing circumstances. People's preferences and choices are inevitably shaped in non-rational ways by their environment. George Sher asks, "exactly what is disrespectful about taking (benign) advantage of a causal process that would occur anyway?" (2) More specifically, establishment, unless it involves tangible disabilities for members of minority religions, does not impair individual autonomy at all. This is why establishment is not taken by international human rights instruments and tribunals to impair religious liberty. (3)
Greenawalt acknowledges that "government promotes all sorts of points of view over others" (p. 9), but notes that religion may be special, because:
when a person's sense of her relationship to God (or gods) or to ultimate reality is concerned, the government should particularly refrain from attempted influence. This stance is based both on the essential nature of the questions religions address [meaning, it shortly becomes clear, the way in which establishment can corrupt both religion and government] and on the government's incompetence to deal with them (p. 9).
In the pages that follow, he elaborates on these considerations. (4) These may be sound arguments. I happen to think they are. (5) But what have corruption and incompetence to do with autonomy?
The basic problem is that the idea of autonomy is too abstract to be a basis for religious liberty. One problem is that which, Greenawalt acknowledges, John Garvey has raised: "any principle of maximizing autonomy would cover many areas of choice that do not receive similar constitutional protection" (p. 486). (6) Greenawalt responds that autonomy is only one of the concerns of the religion clauses: a clause can fit multiple justifications even though it does not fit any one of them perfectly.
But if the law is barred from manipulating people in religious directions (and thus violating their autonomy), while it remains free to manipulate them in nonreligious directions (and thus violate their autonomy in exactly the same way), it is hard to see how autonomy as such is what is being protected.
The idea that religious freedom serves autonomy makes sense only if it relies, sub silentio, on something like Joseph Raz's view that "[a]utonomy is valuable only if exercised in pursuit of the good" and that "[t]he ideal of autonomy requires only the availability of morally acceptable options." (7) Religion would then be protected because it is an option that is particularly valuable. …