Wrestling with Religion in Law

Since they stopped allowing comments [which seems a trend] at all around a couple years ago, I stopped regularly reading Sandy Levinson's blog. I find multiple people who blog there somewhat annoying. But, at times, there are interesting things there, including discussions over some book.

The latest, which I did not read comprehensively, is about a Levinson's old book (is there an update?) Wrestling With Diversity. I actually own a copy, buried somewhere.  Levinson was basically my first online reading, his "embarrassing Second Amendment" article something I printed out at the library before I even had dial-up Internet.  I exempt here my bulletin board experiences from c. 1990, which had some back/forth that are still standard.

I disagree with Prof. Levinson on various things, but that was fairly easy, since his blog posts were really a chance for him to basically free associate his concerns about constitutional matters and so forth.  But, his views also are interesting, and not standard liberal cant at times.  The book cited are really as I recall a bunch of essays about diversity, praising it, but saying it should be full-fledged, covering all sorts of views and peoples.

As one member of the discussion notes:

In the last chapter of Wrestling with Diversity, Sandy and Rachel Levinson ask ‘why should practices rooted in religious belief be treated differently than "cultural norms," whether for good (…) or potentially even for ill (…)?’. Their conclusion can be fairly summarised as stating that religion and culture are not really distinguishable so that there is no persuasive reason for treating the former differently from the latter.

My view here is twofold. First, and I realize he is speaking in part as someone who pushes back against the Constitution, religion is specifically included in our constitutional system.  The Constitution is addressing our current reality, and religion remains specific here, separate from "culture" in general.  The citation of alternative Chinese medicine is covered by constitutional concern about race based classifications, anyhow.

The other is that "religion" is appropriately defined in an open-ended way.  The comments there basically agrees with that sentiment, citing some open-ended liberal view of "belief" factoring into how a person can create their lives. This came up in the Dobbs abortion case though only the dissent truly honored the principle.  And, then, you can try to define that.

Such an open-ended version is tricky and when it touches upon public matters, we should allow more opening for public regulation. This underlines the "right to privacy" hits upon something important, even if line drawing (what else is new) is difficult.  All the same, again given our current Constitution, this still allows (and warrants as good public policy) some discretion based on a broad view of "religion."

So I have argued for regulatory exemptions for religiously motivated behavior, subject to a stringent but not insurmountable compelling interest test. I have argued that when government chooses to subsidize private providers of secular services, including education, it may and must fund secular and religious providers on equal terms. And I have argued for full and rigorous protection of private religious speech, including in public schools. But I have also argued that government should never take sides on disputed religious questions, which means that it should not write or lead prayers, give any sort of special or preferential access to religious speakers, or erect or sponsor crosses, Nativity scenes, Ten Commandments monuments, or other religious displays. 

This sounds fair on some level though it simply isn't how it is now applied. So, his approach in the Town of Greece case (where he basically tossed the atheists under the bus) was rejected.  The "must" part also clashes not only with certain states with stronger separatist traditions, it is also to be a bad approach. It also is question begging.  I went to Catholic schools.  They were not purely "secular" services.  And, I did not know he took a full Marsh v. Chambers position anyway.  

My heart supports a strong separation of church and state. Nonetheless, I understand and probably can support various funding of sectarian institutions in some cases.  An early case involved bus fares (I myself had a bus pass that was good for public buses when I went to a Catholic high school).  Cases in the 1970s split in various ways over maps and field trips. It got a bit silly.  I would allow some discretion there; the "must" bothers me.

I'm not appalled at tax exemptions for churches, since the exemptions are not only for churches.  If they want the exemptions, it is not outrageous (though realistically this is not what happens) for them to be required to avoid political advocacy.  On some level, that does seem wrong -- religious belief overlaps with social and political causes.  Some churches are liberal, some conservative.   The reality basically is that the government keeps out of it, unless a church is blatant.

The line drawing there should be reasonable and again it's okay if there is some discretion [a conservative might appeal to originalism to argue the 1A gives states discretion] on how to do that.  A case in the 1960s involved books. Maybe, it is important to ensure that the government should give the same books to each school.  As James Madison noted, even an "evenhanded" rule will benefit large denominations. That might be fine as a matter of the so-called free market.  But, when the government is involved, funding that benefits a few denominations is tricky.

And, as with all line-drawing, people can carp on the lines.  The lines should be reasonable and reasonable differences of opinion will arise.  Note the last part.  I think it is sensible to not have government supported religious displays.  Not the rule any more (if it ever completely was). But, at the very least, there should not be favoritism.  This is the general idea in certain 1980s cases, cases at times ridiculed for dividing over minutiae (the so called "two reindeer rule" popped up).  

In some parts, especially since the term is often selectively applied ("Christianity" is major case here -- it isn't "conservative evangelical" by definition), the idea we should respect "religion" is seen as ridiculous. Some like to ridicule "imaginary sky gods" or the like. I'm not in this camp, especially since millions upon millions of believers are on the side of sanity.  Religion is a basic part not only of our history, but of humanity.

The trick is to determine how to define and apply it.