Saturday, May 14, 2005

Church and State

Liberty Magazine has a very interesting article titled Church-State Relations in America What's at Stake and What's Not by Prof. Carl H. Esbeck (Law, Missouri-Columbia). Below are some excerpts on points with high philosophical interest, though the article has much more stuff. Fxs

On the position where a conflict between the Establishment Clause and the Free Exercise Clause is assumed:

There are obvious flaws in the conflict-between-the clauses position. First, to regard the free exercise and free speech clauses as affording an individual right held by student A to practice her faith, and the establishment clause as a second and different individual right vested in student B to be free of unwanted exposure to A's religious exercise, makes no sense. It places constitutional rights on a collision course. Under such a treatment, attempts to reconcile the conflicting rights, or to subordinate one to the other, are tortuous and unpersuasive. This supposed tension between the clauses falls away, however, when the establishment clause is regarded not as an individual right, but as an aspect of the Constitution's overall structure of
limited government, one policing the boundary between civil government and organized religion. A school's like treatment of student clubs, secular and religious, is religion-neutral and thus does not transgress this boundary.

Second, the framers who drafted these clauses laid them next to each other in the First Amendment. It makes no sense to suppose they wrote back-to-back provisions that conflict. Modesty requires that school lawyers concede the absence of any hermeneutical logic to their position. Third, the Bill of Rights was adopted because the founding generation feared an overly powerful government. Thus the establishment clause, like all other provisions of the Bill of Rights, operates only to limit the actions of government. The clause cannot work to limit the actions of private parties, such as students desiring to attend a religious club.

On the definition of "religion" (emphases are in the original):

There is a move to thin out the meaning of "religion" in the First Amendment so that its definition sweeps far beyond any normative understanding of what counts as religion. ... so that it means little more than a deeply held conviction, religious or not. This is an argument for constitutionally protecting religious liberty without the necessity of subscribing to a religion. True, it is entirely proper that "religion" in the First Amendment is taken to include more than just theistic faiths. But the "religion" of the First Amendment entails rich communal traditions of ultimate belief and practice, not radically individualized belief.

It is wildly extravagant to insist that every person's religion is self-constructed. ...

On the other hand (emphases are in the original):

... others argue for ways of shrinking the meaning of "religion" in the First Amendment. This argument attacks the all-important definition of "religion" from a different direction. It is illustrated by judges who read the free exercise clause as protecting religious practice only if its exercise is "mandated" as opposed to merely "motivated" by faith. This does violence to the text, of course, which speaks only of "free exercise." Such judicial hostility is especially detrimental to a religion such as Christianity, which emphasizes not outer conduct or legalism but a heart attitude from which a convert willingly responds in love because he or she has first received grace.

Similarly, some judges have insisted that only "central" tenets of a faith are constitutionally protected. However, judges are ill-equipped to dissect the religion in question (a complex undertaking and one outside judicial experience) with an eye to discerning a sliding scale of doctrine, and then to protect only the top-drawer tenets of that religion. Most anyone would rather trust such theological undertakings to a minister or rabbi instead of relying on results produced by the steady diet of pragmatic instrumentalism that constitutes most on-the-job judicial training.

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