Academic

Koppelman on Corruption of Religion

By Lawrence Solum

Andrew Koppelman (Northwestern University School of Law) has posted Corruption of Religion and the Establishment Clause (William & Mary Law Review, Vol. 50, 2008) on SSRN.  Here is the abstract:

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. This paper explores one 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.

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.

And from the text:

As the common ground shrinks, however, its basis must become more abstract and vague. Christianity will no longer do the job. Neither will monotheism. But the idea that religion is something of value, and that that value is jeopardized when religious questions are adjudicated by the state, may continue to provide the common ground that is needed.

The pluralism we now face was not imagined by the framers. It is therefore impossible to attribute to them any view about it. Protestant Christianity was so pervasive in their culture that they did not even consider whether its establishment was inconsistent with religious liberty.285 Modern religious pluralism has generated new knowledge about the range of religious issues that are potentially subject to corruption by state interference.

And:

The definition of religion in American law appears to work just this way [i.e., along the lines of Wittgenstein's concept of "family resemblence"]. There is no set of necessary and sufficient conditions that will make something a ?religion.? But it is remarkable how few cases have arisen in which courts have had real difficulty in determining whether something is a religion or not.293 In the context of the hands-off rule, religion should be understood by reference to a set of ultimate questions that the state must not try to answer. But the state can recognize and promote the good of religion, understood at a certain level of abstraction. Neutrality is fluid; it is available in many specifications.294 The American approach is one defensible specification. The state is agnostic about religion, but it is an interested and sympathetic agnosticism. The state does not say ?I don?t know and you don?t either.? Rather it declares the value of religion in a carefully noncommittal way: ?It would be good to find out. And we encourage your efforts to do that.?

The precise character of the good being promoted is itself deliberately left vague, because the broad consensus on freedom of religion would surely collapse if we had to state with specificity the value promoted by religion. ?Religion? denotes a cluster of goods, including salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists),295 responding to the fundamentally imperfect character of human life (if it is imperfect),296 courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps),297 a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps),298 contact with that which is awesome and indescribable (if awe is something you feel),299 and many others. No general description of the good that religion seeks to promote can be satisfactory, politically or intellectually.300 The establishment clause permits the state to favor religion so long as ?religion? is understood very broadly, forbidding any discrimination or preference among religions or religious propositions.

Another interesting angle on the problem that Koppelman attempts to address might be provided by asking the question--what would count as a good reason (or good set of reasons) for treating a given set of practices or beliefs as "nonreligious."  An encompassing list of things that count as religious cannot do any work by itself--because it provides no "guidance where guidance is needed."

Recommended.

Full post as published by Legal Theory Blog on September 22, 2008 (boomark / email).