FedSoc LiveBlog: Religious Liberty and the Limits of Government Power featuring Judges Kavanaugh and McConnell and Ira Lupu

November 14th, 2009

Religious Liberties

  • Prof. Alan E. Brownstein, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality, University of California, Davis, School of Law
  • Prof. Ira C. “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Stanford Constitutional Law Center, Stanford Law School
  • Moderator: Hon. Brett M. Kavanaugh, U.S. Court of Appeals, D.C. Circuit


Understanding the scope of the establishment and free exercise clauses has always confounded us, and we hope the panel today can provide some clarity.


I am going to address topics of conventional wisdom that liberal democracy requires secularization, and that our establishment and expression clause are the legal embodiment of that movement.  I suggest that is not historically what the 1st amendment was about.  Instead it was about preventing the govt. from controlling the formation of public opinion.  It is more akin to free enterprise and free press than to any specific secularization impulse.

The founders’ wanted govt. controlled by public opinion, not other way around.  Establishment should be close relative of free press clause, to prevent govt. from controlling institutions that form and share opinions.  Disestablishment is not aimed at theocracy, but instead govt. control over church for govt.’s own purposes.

Parliament actually authorized the King James Bible.  The thirty-nine articles of faith of the Church of England were voted on by Parliament.  Church was thoroughly under control of state, which used church as an instrument of social control, to inculcate the idea that good Christian subjects would be obedient to the King.

In US, Church of England was disestablished in every county it was established (every county south of PA).  People were taxed to support church and people were required by law to attend church.  Govt. in some states controlled who were ministers.  This is the type of establishment that the Constitution took aim at.

No public schools until 1830’s so the issue was not even on the table for Founders.  Our new America was not going to have any institutions for the control of public opinion.

Disestablishment was based on understanding that separating church and state depended on limited govt.  Quotes Loche on boundaries b/t civil govt. and church.  Loche’s “wall” b/t church and state was identical to the idea that the proper sphere of govt.  is to protect population against domestic and foreign fraud and violence and to maintain order of society, not education, charity, arts, economy.  However, once the govt. crosses this boundary, relations b/t church and state become more difficult.

Conflict b/t free exercise and free enterprise.  Maybe there should be a free enterprise clause. LOL

Mercantilists believed govt. should control resources of society, much like free exercise leaves religion free of govt. control, b/c religion is more likely to flourish if left alone.

Wealth of Nation’s has a chapter about the establishment of religion.  Smith wrote that religious officials whose pay was guaranteed by state would not be as enthusiastic.

Freedom does not depend on limiting religious influences, rather freedom depends on limiting govt. control over religion.

More after the jump.


S.C. has not adequately addressed whether Establishment Clause should apply to the states.

What would follow from implementing Justice Thomas’s views that free exercise clause should apply to states? How would religious liberties fair? This would probably forbid state compulsion of worship and coercive sectarian preferences.

State and local govt. would have wide discretion to lift state bans on expressions of religion.  Govt. sponsorship of religious messages/symbols. 10 commandments monuments built on public grounds and for openly religious reasons, School sponsored prayer — perhaps highly sectarian — and crosses as war memorials.  Cases about these types of practices have been a staple for courts and a source of consistent social and political discontent.

Thomas’s views would not solve all problems b/c these expressions are exclusive to some degree, and some faiths would not be included in the govt. sponsorship.  Once we reach the point where the Establishment clause has been disincorporated, then it would be quite significant.  Everyone would be free to worship as they like, but some faiths would get symbolic support or promotional advertising.  This is a question of social theory, more than a question of law.  The climate in some communities would change depending on the community.

Once heard Brownstein say that school prayer cases made it safe for him to move from the Bronx to UC-Davis.


If specific areas of life where govt. role should be particularly limited, it is religious beliefs and practice.  Democracy is good at self-government, because religious truth does not come from ballot box.

Compared to other westerners, Americans are religious people.  But our free exercise jurisprudence is shallow at best.  If we compare it to a right we take seriously (freedom of speech), it seems anemic in comparison.

  • Scope of religious practices and conduct in the U.S. is broad and deep, so some will produce externalities that burden both people and the public interests, so state interests justify restricting religious autonomies.  Courts will have to balance religious liberty with state’s right to interfere with it.
  • Misgivings about propriety about the balancing process itself. We can ask if balancing problems is reason for undermining religious liberty protections.  Other nation’s courts have used public policy analysis.  There could be ways to limit judicial discretion, but some balancing is required for jurisprudence
  • Many religious liberty issues arise from things that are within state control i.e. prisons, schools.  Core issue is that public education is discussed as a local concern.  Curricula are the prerogative of educators, not judges.  But others see federal intervention to protect teachers and students’ ability to express faith at school-sponsored activities.
  • Religion is a multidimensional constitutional interest, implicating many different values, personal autonomy, anti discrimination concerns, and freedom of speech.  These can overlap and compete, so reconciling them in doctrine is extremely difficult.  Does the state’s protection of one type of personal autonomy necessitate that it also protect other autonomies?  Govt. isn’t required to equalize the protections it provides.

          Speech is not incidental to practice of religion, as it is with all other activities.  Religion plays a significant role in marketplace of ideas, so any attempt to exempt religious activities without doing so for secular speech would raise serious constitutional concerns.

          Free speech clause is a harsh mistress, as it prohibits government from both limiting religious expression but also prohibits favoring either type of expression or activity.

          McConnell’s response to question about expression and symbol cases:

          I think the basic problem is that neither of the two extremes on religious symbols could possibly work, even theoretically, because we are a culture that after 200 years is  suffused with religious and other cultural products.  The govt. has the role of dealing with a rule of complete secularization of society touched by govt.  would be wrong b/c we would enforce governmental whitewashing that is not neutral or similar to concerns of the framers.  On the other hand, to say the govt. has a free hand to use religious symbols is something we haven’t seen outside of a few controversial contexts.  In Supreme Court, we have not seen advocates of either extreme.  It would be artificial to remove all religious symbols from the public sphere Justice Stevens said this would show a “stilted indifference” to the wants of the public.  Breyer says religious symbols on public property are OK as long as there is plausible secular meaning and they have been around for a long time.  This is untidy, but highly specific way of dealing with an area where there is no right answer.

          Lupu then expressed his agreements that extremes only produce deeply dissatisfactory results.  However, some local judges have taken a side in the Culture Wars.  Drawing a line is very difficult and sometimes we should not try to do it.

          Question: States have enacted laws such as penalties for refusing to participate in same-sex marriages (photographers, etc.).  Would you be inclined to strike this down?


          I have put a paper on the Social Science Research Network on this question.  The proposals of many kinds aimed at reaching accommodation with same-sex marriage.  The constitution has no answer to this, so states have wide boundaries for these exemptions.

          There are good arguments for respecting these conscientious objections.  The argument for the exemption is that facilitating same-sex intimacy is sinful so they want to be able to refuse doing anything to facilitate this.  However, I think photographers, etc. do not fall within the areas to which civil liberties are meant to apply.