Now that Christmas has morphed into the “holiday season,” Christmas vacation into “Winter Break,” etc., this is a good time to ask whether the state can discriminate against religion.Thoughtful, intelligent people seem to think so: Dahlia Lithwick here (my reply to which is here); Nate Oman here; and my old preferences jousting partner and buddy Garrett Moritz (to whom I owe the Oman reference) here.
Lithwick’s piece was uncharacteristically sclerotic (“Of course chasing religion from the public square is hostile. The point is that it’s the only means of avoiding a theocracy”), but both Oman and Moritz make reasoned arguments that the state’s behavior toward religion is not, or should not be, governed by a neutral non-discrimination standard.
In discussing the question raised by the current case for Locke v. Davey “does a state violate the First Amendment by refusing to provide scholarships for seminary education when it does so for non-religious training? ” Moritz comments:
[although] a state certainly could distribute scholarship funds neutrally and permit individuals to use them for religious education if they wished, that is not the same as requiring the states to do so. That a right exists (here, religious freedom) does not always mean that the state has to decide between funding the exercise of the right and funding nothing, even though the state certainly would be free to fund the exercise of the right if it so wished.
Oman makes the same point, complaining that:
the Supreme Court [has] turned the Free Exercise Clause into an anti-discrimination norm. This shifted the focus of religious freedom from the private actions of individuals to the public actions of the state. We no longer ask the question of whether or not a person’s private religious observances are being burdened or criminalize[d]…. Instead we look at what the government is doing and fret about whether it is being neutral or discriminatory.
Moritz and Oman are surely right that the state has no obligation to fund the exercise of every right it recognizes. I have a right to travel, but the state isn’t required to buy my ticket. I have a right to have an abortion (well, you know what I mean), but the state may legally refuse to pay for it even though it funds other medical procedures.
Still, there is something fundamentally troubling about an argument that the bar against the state establishing religion or interfering with its free exercise does not require it to act in a neutral, non-discriminatory manner toward religion. Such an argument has trouble responding to a point Justice Scalia made in the Locke v. Davey oral argument, as noted by Lithwick: “if the state can constitutionally discriminate against all religious study, it could constitutionally discriminate only against, say, Jewish studies.”
Moritz and Oman might reply that that would be impermissible, not because it is discrimination but because it would amount to an impermissible state preference for one religion over another, and that would violate the bar against establishment. But what religion would be established if the state gave aid to all religious groups except Jews? In short, if the state has no obligation to treat all religions, and non-religion, in a neutral, non-discriminatory manner, excluding one religious group from benefits voluntarily extended to others would seem to lie well within its discretion. So, for that matter, would a university’s promoting “diversity” by awarding benefits and burdens in the admissions process based on religion.
Current tax law provides tax exemptions to organizations that are “religious, charitable, or educational.” Would it be permissible to remove all religious organizations from that benefit, i.e., to provide exemptions for secular private charities and schools but not for those that are religious? Could a city refuse to provide police and fire protection to church property? After all, no such policies would actually prohibit the free exercise of religion; they would simply remove public financial support from it. Absent an obligation to treat religion — both religion in general as compared to non-religion, and all religions individually — in a neutral, non-discriminatory manner, it’s hard to see what principle would prevent such clear abuses. [This paragraph added 12/25/03 10:25AM]
In my view a policy that discriminates against all religions by excluding them from benefits provided to the non-religious offends the free exercise principle just as much as a policy that favors one religion over another violates the principle that prohibits establishment. And neither of those principles makes sense if they are divorced from the principle requiring government to act in a neutral, non-discriminatory manner.
UPDATE �
Garrett Moritz, as usual, makes a strong and cogent argument in a comment to this post for the view that the Constitution, and our history, require not neutrality but special treatment for religion. In fact, he makes such a good argument that I decided to reply to it here, above ground, rather than buried in the comments below. Before proceeding, however, do read his remarks.
Garrett’s defense of making an exception to the ban on sale or distribution of alcohol to minors so they can participate in Catholic Communion is a perfect example of “free exercise” requiring not neutrality but special treatment for religious practices. This willingness to make exceptions for religions to laws that apply to everyone else has, as Garrett argues, an ancient and honorable tradition. Other classic examples are Wisconsn v. Yoder (1972), in which the Supremes upheld the right of an Amish couple to refuse to send their children to school beyond the eighth grade, despite a valid school attendance law that applied to others. Similarly, in Sherbert v. Varner (1963), South Carolina was required to pay unemployment benefits to a Seventh Day Adventist who was fired for refusing to work on Saturday. The Baptist Joint Committee on Public Affairs (one of many organizations who adopt this view) thus is on solid ground in asserting that free exercise “means giving religion special treatment under the law to accommodate religious practices.”
There are many cases that support this special treatment argument, just as there are many that reach the opposite conclusion. Territories in which Mormons were plentiful were required to outlaw polygamy as a condition for becoming states. More recently but in a similar vein, Employment Division v. Smith (1990) held that Native Americans could not receive an exemption from the laws against the use of peyote even for a religious practice. Indeed, Justice Scalia, who wrote that opinion, defends across the board neutrality with the fervor of a religious crusader.
It is no secret by now that I am mightily attracted to the neutrality doctrine, but at the same time Garrett’s argument (and it is, of course, not just his; he is in very good company) has a great deal of historical, legal, and common-sense support. This is a complex area where I’m not far beyond the stage of agreeing with the last argument I’ve heard.
Nevertheless, I’m happy to say that I still think Garrett is wrong, even according to the lights of his own argument. Insofar as he is right, he has established (if you’ll pardon the expression) that there are occasions where (quoting now from his comment below) “the religion clauses should actually require discrimination” to protect religious practices. Maybe so. But even if true, this does not come close to justifying discrimination against religion or religious practices, to placing burdens on religious practice that identical secular practices are allowed to escape. And that question, after all, is the central issue in Locke v. Davey, with which this discussion began.
I believe it would be somewhere between hard and impossible to construct a compelling historical argument supporting the notion that the state has, or should have, discretion to single out religious practices for special burdens not placed on similar secular ones. One should never underestimate Garrett’s ability in areas like this (after all, he also makes good arguments for racial preferences), but if he were to succeed with the argument that the right to discriminate for necessarily includes the right to discriminate against, the effect, at least in my case, would be to solidify and confirm my innate preference for applying a neutral, non-discrimination standard in all cases.
The issue is that the State should not be involved in education at all. Awarding scholarships necessitates selective criteria and the preference of certain ideologies over others. Secular ideologies are no different from religious ideologies. So awarding a scholarship for environmental studies is discriminatory against all citizens who oppose environmentalism.
Michelle, I think that’s going too far. The point, I believe, is not that states can never discriminate. If they couldn’t discriminate, they couldn’t exist (which, of course, is the point of extreme libertarians). Subsidies to peanut farmers discriminates against all farmers who aren’t subsidized. Etc. Whom to subsidize is a policy argument, not a matter of principle.
On the other hand, as I argue repeatedly here, we decided as a society to place certain kinds of discrimination — specifically, state benefits or burdens based on religion or race — in a special, protected category, beyond the reach of state preferences. That early collective decision (often breached in practice, to be sure) has been undermined by the acceptance of racial preferences, and it would be undermined further by the acceptance of burdens placed selectively on religion or religous practice.
If you’re willing to be textualist about it, where does this “anti-discrimination” norm come from? Not funding religious study with citizens’ tax dollars doesn’t prevent anyone from “freely exercising” any religion, nor does it “establish” a religion. I don’t think either of the religion clauses, at core, is really about (or should be about) the government treating religion and non-religion “equally.” (As will be seen below, I in fact think exactly the opposite is sometimes the case). The religion clauses are not equal protection clauses; they are about keeping government and religion from becoming too entertwined.
One way to test the equality norm that you invoke is the following hypo: Consider a religion-neutral law that makes it illegal to distribute alcholic beverages to anyone under 18. Under a strict neutrality rule, enforcing this religion-neutral law against the Catholic Church (along with secular liquor retailers) for distributing communion wine to those under 18 would be perfectly acceptable. I don’t think such a result would be in accord with the history of the religion clauses, nor do I think it would be upheld in reality (although in situations involving less “popular” religions — say, certain Native American groups’ religious use of peote — the Supreme Court has already taken such a position).
No, I think the religion clauses should actually require discrimination to protect the distribution of communion wine to Catholic minors — secular distribution should be illegal to be sure, but not distribution for religious purposes. I think this hypo shows some of the problems with reading the religion clauses as creating some kind of “equality” norm. In fact, in many situations, I think a faithful reading which takes the history of the free exercise clause into account actually requires the government to discriminate between religion and nonreligion (though I will admit that the core evil the establishment clause combats is indeed discrimination, but discrimination between sects).
The upshot: I know this website is called “discriminations,” but I respectfully submit that “equality” or “anti-discrimination” just aren’t quite up to the job of explaining what the religion clauses should be all about.
I understand that those hostile to religion are also hostile to arguments based upon claims of excessive taxation, but at some point the situation clearly becomes a prejudicial burden against the religious. Every year, the combined forces of the local, state and federal governments spend more than half of my family’s budget. Add up everything we spend on food, clothing, our home, medicine (all of which we provide for ourselves without government handouts), entertainment, travel, recreation, yes everything we spend, and it is LESS than what the governemnt takes from us by law and at penalty of imprisonment and spends as it chooses. As a result, and under current law, more than half of the money belonging to my family is spent on completely non-religious purposes against our wishes.
Now, according to the hostile secularists, it gets even worse, because if someday the government might actually give my family some of this money back, it should be allowed further to tell us that we are not allowed to spend it for any religious purpose.
I’m sorry if the secular statists fail to understand this, but spending money is how people enforce their moral choices. A government that spends more than half of our money sqeezes the religious aspect of our lives into a smaller and smaller part of the world. That is an unfair burden. That is an unconstitutional burden.