Legal Commentary

Since the Supreme Court last month struck down the so-called ?millionaire?s amendment? to the Bipartisan Campaign Reform Act, a provision that had loosened campaign finance restrictions on opponents of self-financing candidates, debates have been proliferating over just how much the Davis v. FEC case will affect the election law landscape. I haven't yet seen anything though that looks at Davis through the lens of the religion clauses, in the way that Pam Karlan's fascinating new piece, "Taking Politics Religiously," 83 Indiana L.J. 1-20 (2008), suggests could importantly illuminate our understanding of the law of democracy.

As a thought experiment, imagine the regulatory scheme at issue in Davis transposed into an Establishment Clause case involving vouchers. State X considers a law creating a voucher program through which each student can spend $2,300 at the school of her choice. Any school participating in the program has to agree to derive all of its current revenue from the vouchers rather than from other sources. In legislative hearings, a number of individuals express concern that, because Church Y is the only one that has already set up educational institutions and is well financed in the region, students would only be able to opt out of the public school system by attending Church Y's schools and the result would be a de facto, if not de jure, establishment of religion. Would it then be permissible, under the Establishment Clause, for the state to allow new competitor schools to receive private funding above and beyond their voucher receipts until they, like the pre-existing religious schools, had enough money to ensure their continued existence? 

Reasoning from Davis, the answer would be ?no.? Now, envision Davis translated into the language of the Free Exercise Clause. This effort, I believe, points up the disparity between the Davis majority?s construction of the individual right at issue in that case and its usual approach to rights in other contexts. Imagine that, after the U.S. Supreme Court?s decision in Employment Division v. Smith, the Supreme Court of Oregon, based upon state constitutional protections for religious liberty, decided to judicially grant Native Americans an exemption for peyote use from generally applicable drug laws. In the aftermath of this decision, other religious institutions in the vicinity that had ceased drug-related activities central to their religious beliefs because of their illegality lobbied the state legislature for an exemption from state laws regulating such substances. If the state did indeed create such statutory exemptions, could we envision the Native American Church succeeding in a free exercise-based claim that permitting these other groups to engage in religion-related drug use diluted the symbolic meaning of their own religious practices and thereby generated a constitutionally impermissible burden?

It is difficult, in the free exercise area, to contemplate the Court treating an exemption granted to one individual?s or group?s religious practice as in and of itself imposing a burden on others? free exercise rights. It is, however, precisely this kind of competitive and zero-sum conception of an individual right that Justice Alito adopted in Davis when he explained that the ?millionaire?s amendment? imposed a ?potentially significant? and ?unconstitutional? burden on the self-financing candidate?s ?First Amendment right to use personal funds for campaign speech? (Slip. Op. 12, 14). Given this discrepancy, it will be interesting to see how far beyond the campaign finance arena the Court will be willing to extend Davis?s understanding of a right.