I generally support an equal treatment view of the Religion Clauses; the Establishment Clause generally bars discrimination in favor of religion, and the Free Exercise Clause generally bars discrimination against it. There are plausible arguments against such a view, especially (as to the Establishment Clause) if one is an originalist. But given the precedents that have accreted over the last several decades, precedents that the Court is unlikely to sweep away, it seems to me that the equal treatment view is on balance the best outcome we can get today. It generally treats people fairly, and it also has the merit of providing clear rules, rather than “The Establishment Clause requires some discrimination against religion, but not too much,” or “The Free Exercise Clause requires some accommodation of religious observers, but not a lot.”
Sometimes, though, I hear the following sort of argument:
Argument: The Establishment Clause should be read as requiring discrimination against religion.
Response: That sort of discrimination is unfair.
Rebuttal: Ah, but that’s OK, because we can compensate for that by reading the Free Exercise Clause as requiring special benefits for religion.
And there’s of course a converse argument — the Free Exercise Clause should be read as requiring special benefits for religion, but that’s not unfair because we can compensate for that by reading the Establishment Clause as imposing special burdens on religion.
The trouble with this “quid pro quo” theory of the Religion Clauses is that it talks about “religion” as if it were some particular person: Look, Religion, sure, we’re taking something away from you, but that’s OK because we’re giving you something in exchange. What’s the big deal, buddy?
But there is no Religion. There are religions, and more importantly religious observers, each of whom has his own constitutional rights.
Many religions and religious observers may share many values, but they will also differ on many values and goals. True, there are some cultural battles in which secularists are aligned on one side and religious observers of many faiths on another. But those are only a small fraction of all potential political battles; and even in those, a person’s religious denomination is likely to be as important as his felt religiosity.
There’s little reason to believe that the religions or religious believers benefited by rigorous Free Exercise Clause protection will be the same as the ones burdened by a rigorously enforced Establishment Clause. Historically, Catholics have been quite burdened by a forceful Establishment Clause that has mandated discrimination against religious institutions (such as against religious schools in evenhanded school choice programs). But they have gotten very few benefits from the Free Exercise Clause, even when it was read as mandating special accommodations for religious observers.
On the other hand, the Amish have gotten some benefits from the old Free Exercise Clause under which religious observers were entitled to some special accommodations. But it’s not clear that they have been much burdened by the Establishment Clause, even when the Court read the Clause as demanding more discrimination against religion than under the current reading.
I’m not even sure that the benefits of a rigorous Free Exercise Clause and the burdens imposed by a rigorous Establishment Clause will even out if you aggregate the effects on all religions. But more importantly, the aggregation isn’t proper. When the quid is going mostly to some groups, and the quo is comingly mostly at the expense of others, a quid pro quo vision of the Religion Clauses makes little sense.
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