Since the Warren Court era, strict separation between church and state has been the hallmark of liberal religion clause jurisprudence. Separation between church and state has been understood to protect minority religions from majoritarian oppression, preventing dominant religious faiths from using the state apparatus to instill an official orthodoxy or creed. Minority faiths, cognizant of these risks, have thus dutifully supported strict separationism as their preferred legal principle.
Yet strict separation may not be to the optimal benefit for religious minorities. Using the experience of Jews in America, I take a critical view of the separation of church and state, showing how both in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism). At the same time, separationism is indifferent or even hostile to the particularistic needs of less prominent sects. I then use these observations to construct a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. This principle, inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate an establishment and free exercise perspective that sees as its goal the equalization of status between majority and minority faiths in America.
You can download a draft copy here at SSRN.
UPDATE: Too long? Don't feel like downloading the whole thing? Here's my blog-only abbrieviated form. For those of y'all too lazy to dive into a 30-page paper by someone you barely know.
6 comments:
Congratulations! I am sure that this will be the first of many. If you are interested in how separation or secularism tends to benefit religious majorities, you may be interested in the debate in India about getting rid of "personal law," particularly for the Muslim minority.
David, can you explain something for me please.
In your abstract you say -
"...showing how both in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism)..."
When I look up "secular" in the dictionary (Concise Oxford) the meaning closest to the sense of your statement is -
"3. concerned with the affairs of this world, not sacred or monastical or ecclesiastical. "
Another more recent dictionary gives "worldly" as the primary meaning.
Do you consider "...worldly, not ecclesiastical..." as being a dominant religion?
To clarify a little, I am very much against the alliance of state and religion in any form. My primary justification for this is the very point that you are making - that a dominant religion will tend to "instill an official orthodoxy or creed". I would have thought, given your premise, that a secular government is exactly what you are seeking.
Where am I misunderstanding you?
I do think that secularism represents a "religious paradigm", in that it denotes a worldview that is self-consciously not religious. Obviously, the act of marking something off as "not religion" has implications for religion. Put another way, if we were discussing "what outlook should government have with regards to religion," we might respond with "a Christian outlook", a "Jewish outlook" or a "secular outlook."
As to why it impacts my thesis, a secular law (ex: no headgear in school) can still have disproportionate effects on religious persons (what about Jewish kippahs or Muslim hijabs?). I want the government to be aware and accommodating in such situations, which requires a greater linkage to "religion" than a strict separation paradigm would seem to allow.
David, that first para of your comment is getting to me...
"I do think that secularism represents a "religious paradigm", in that it denotes a worldview that is self-consciously not religious.
OK, I think that I got that. Personally I would put a different stress to it - but the difference is minimal at this point.
"Obviously, the act of marking something off as "not religion" has implications for religion"
Only in that "everything else must, by definition, be religious".
"...if we were discussing "what outlook should government have with regards to religion," we might respond with "a Christian outlook", a "Jewish outlook" or a "secular outlook."
Take out the last alternative. Replace with the phrase "...none at all". Then the statement is correct with respect to a secular government.
That also then gives greater validity to your following example, apart from one point - the law is no longer secular. It is now being passed by one religion to prevent (in this case) the proud self-identification of a minority culture.
In the French example the law is a very poorly disguised attempt to satisfy some of the anti-Islamic (predominantly conservative Christian) hatreds and bigotry. That is not good law. It is one religion passing law to suppress another.
Once again I consider myself fortunate that I live in a truly secular nation. It would be illegal for the NZ government to pass any law that discriminated against a person on the basis of his religion.
Kudos! on an honor well deserved!
the probligo,
This is getting a bit deep into nuances of specifically American constitutional law, but there are many ways in which laws purportedly of general applicability will be to the detriment of religious minorities. For example, when Prohibition was passed, there were exceptions made for Catholics and others who use wine in religious ceremonies, and people were not fired for drinking Christ's blood at church. Our drug laws, however, do not make exceptions for Native American religions that include peyote in religious ceremonies, and the Supreme Court implicitly approved the firing of a person for peyote usage, and his subsequent disapproval for unemployment benefits (Smith v. Oregon).
Of course, Native American religious peyote users are a very small minority, whereas Catholics are now a majority of the Supreme Court and they and other religious wine drinkers are a substantial part of the U.S. population.
But it's just part of pressure groups in the law-making process: those with sufficient power will get exceptions made to the general law for their particular deviation; those with less power don't get the exceptions through the legislative process, and have to turn to a judiciary that may or may not be sympathetic. (The Court has been sympathetic to some minority religious practices, such as Seventh Day Adventists' refusing to work on Saturday.)
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