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Legal Commentary

: Balkinization

Corruption of Religion and the Establishment Clause

By Jack M. Balkin

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Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. In a new paper, ?Corruption of Religion and the Establishment Clause,? I explore a different consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it.

This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion. The paper examines the pertinent views of the most prominent early proponents of toleration and disestablishment, including Milton, Roger Williams, Locke, Pufendorf, Elisha Williams, Backus, Jefferson, Paine, Leland, and Madison, as well as the somewhat different articulations of the idea by Adam Smith, Tocqueville, Justice Hugo Black, and Hayek.

If the religion-protective argument for disestablishment is to be useful today, it cannot be adopted in the form in which it was understood in the 17th and 18th centuries, because in that form it is loaded with assumptions rooted in a particular variety of Protestant Christianity. Nonetheless, suitably revised, it provides a powerful reason for government, as a general matter, to keep its hands off religious doctrine. It offers the best explanation for many otherwise mysterious rules of Establishment Clause law.

The paper is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1268406.

Full post as published by Balkinization on September 19, 2008 (boomark / email).