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Religious Establishment and Legal Exemptions

Government ought not treat religious people differently than nonreligious people.

What does it mean for government to establish religion? Should religious people or organizations ever benefit from exemptions from laws to which nonreligious people are subject? Here I argue that the First Amendment's establishment clause, properly understood, bars any government support for any specifically religious purpose. I further argue that special legal exemptions specifically for religious people necessarily violate the Fourteenth Amendment's equal protection clause.

Recent events prompted the discussion. Complete Colorado published my article on a federal legal case involving a Colorado church's desire to be exempt from certain zoning enforcements. I argue "the RLUIPA [the federal Religious Land Use and Institutionalized Persons Act], as applied to zoning, seems to hold that religious people have substantial property rights, but other people in important respects do not. And that is a problem if we care about equality under the law." I also claimed that the legal exemptions at hand violate the establishment clause.

Natelson's Case for a Narrow Reading of the Establishment Clause

Robert Natelson, a former law professor (now living in Colorado), wrote in with the following note:

An interesting article on the Castle Rock church.

One point of information: The First Amendment Establishment and Free Exercise Clauses, as properly understood, do not protect agnosticism, atheism, or "non-religion." They were adopted to assure that the government treated all religions equally. Government may still prefer (or disfavor) religion in general.

During the 20th century, liberal courts construed the religion clauses to provide that government may not favor religion over non-religion. This was a historical and interpretive error, and more recently SCOTUS has been correcting it.

This is relevant because the RLUIPA was adopted under Section 5 of the 14th Amendment supposedly to protect the First Amendment religious rights of citizens from state abuse.

Of course, atheists and agnostics are protected by the other press, speech, petition, and assembly provisions of the First Amendment and by the Equal Protection Clause. However, the law was not adopted to enforce those provisions.

As I'm sure you understand, I'm not making a judgment about what the First Amendment should mean, only what it does mean. If you are interested in the historical background, see "The Original Meaning of the Establishment Clause," 14 Wm. & Mary Bill Rights J. 73 (2005).

In my article, I relied mostly on the (I think obvious) claim that if religious people have recognized property rights that nonreligious people do not have, that straightforwardly violates the equal protection clause. I don't see any other sensible way to interpret the matter. If government can take legal action against nonreligious people, but not religious people, for the same type of infraction of a given zoning law, then that is plainly unequal treatment under the law.

Notice that my argument is not, "Well, then, government should violate the rights of religious people as badly as it violates the rights of nonreligious people." No! Rather, my position is that government should recognize everyone's property rights, equally. If the zoning laws in question violate the property rights of religious people (as I agree they do), then they also equally violate the rights of nonreligious people. I am not here arguing that all existing or possible zoning laws violate people's property rights, only that at least some existing zoning laws do. And if the zoning laws do not violate anyone's rights, or insofar as they do not, then there are no rational grounds to exempt religious people from them.

Natelson's point pertains only to the establishment clause. Natelson argues that government granting religious organizations special legal exemptions does not violate the establishment clause. I think he's wrong about that.

Natelson confidently asserts what the First Amendment means, but the meaning he ascribes to it depends on a controversial, and I think basically wrong, theory of Constitutional interpretation that emphasizes the Founders' related views.

I think we should read what the First Amendment plainly says, in the context of the broader Constitution and of the Bill of Rights, which set the intellectual framework for the Constitution that followed it. Although historical reviews can be helpful, even crucial, in understanding Constitutional text, of primary importance is the text itself, and its logical relation to the whole.

To understand Natelson's view of the establishment clause, we need to understand his view of the free exercise clause.

Let us pause here to review the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Natelson believes that the free exercise clause is primary. He writes (90, referring to the relevant page of the article cited), "If the Establishment Clause exists to serve the Free Exercise Clause," as he thinks is the case, "then in the event of conflict, the former must yield."

Natelson further thinks that the free exercise clause protects only particularly theistic forms of religious worship and that government plainly may enforce religious norms. He writes (97), "By the phrase 'free exercise,' the founding generation appears to have meant freedom of religion for all theists, not just Christians; but not the freedom from religion sought by atheists and agnostics."

Natelson claims to "demonstrate the point" starting with a quote from Chief Justice Oliver Ellsworth, who wrote (99):

But while I assert the right of religious liberty; I would not deny that the civil power has a right, in some cases, to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and public detriment. For this reason, I heartily approve of our laws against drunkenness, profane swearing, blasphemy, and professed atheism.

Here Ellsworth cheats a bit by packaging behaviors which arguably violate others' rights (perhaps acting belligerently in public does or can) with behaviors which obviously do not (declaring there is no God).

Natelson quotes Locke along the same lines (101), then concludes:

The founding generation saw freedom of religion as dependent on faith in God and would have viewed freedom of religion for atheists or agnostics as a contradiction in terms. . . . If, as concluded above, the Establishment Clause rested on contemporary notions of free exercise, then the Establishment Clause must not have prevented governmental sponsorship of religion in general.

A bit later, Natelson extends his analysis (112):

[T]he policy against establishment was designed to further the policy of free exercise, and that free exercise extended to all theists, but only to theists. We have seen further that governmental service was to be open to all theists, but only to theists. It is logical to deduce, therefore, that the Establishment Clause was designed to protect all theists, but only theists, and that the Clause permitted government to support all faiths on a non-preferential basis. This deduction is supported by a plethora of historical evidence [some of which Natelson proceeds to review].

To my mind, what Natelson is arguing is that hypocrisy of the past excuses hypocrisy in the present.

To illustrate the point, consider Jefferson's famous line "all men are created equal." If we took Jefferson's own practices as indicative of what that phrase means, then we'd have to conclude that, by "all men are created equal," Jefferson meant that slavery is allowable.

Clearly that's not how we should interpret Jefferson's remark. Rather than interpret the phrase "all men are created equal" to mean "some men may own other men," which is plainly absurd, we should conclude that Jefferson was a hypocrite, and the proper lesson to learn is that we should reject his hypocrisy. Rather than interpret the phrase "all men are created equal" to accommodate Jefferson's hypocrisy, we should understand the phrase "all men are created equal" to mean what it plainly says, that all men (people) are created equal, a principle which plainly bars slavery.

Likewise, when we turn to the Constitution, we should interpret it, not according to the Founders' worst prejudices and irrationalities, but according to their highest ideals and principles. And if the Constitution plainly bars government actions that the Founders would have allowed, then so much the worse for the Founders. Demanding the best from the Founders, rather than tolerating their worst, is the highest compliment we could pay to them, for it demonstrates that we seek to pursue their project of liberty to its logical conclusions.

To take a legal example, Congress passing the Alien and Sedition Acts a mere decade after the Constitution was ratified, and just a few years after the Bill of Rights was ratified, should not be understood to weaken the First Amendment's protections of free speech. Again, we should conclude, not that the First Amendment does not mean what it says, but that the Founders were not always consistent and did not always live up to their own ideals.

The Case for Strong Non-Establishment

Here I make the case that the First Amendment properly bars any government support specifically for religious people, organizations, institutions, and ideas, meaning for the purpose of furthering religion. In other words, we should take the First Amendment to mean what it plainly says and logically implies, that "Congress [and by later extension government in general] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Everyone agrees that the U.S. government cannot make some particular denomination or religion the official church or doctrine of the land, whatever that might entail. For example, government could not subsidize one particular church to further its religious mission, force people to attend some particular church, or punish people for deviating from preferred religious practices or doctrines (although Natelson wants to delimit this point).

If Natelson's interpretation of the First Amendment were correct, it would allow government to subsidize all theistic churches on equal footing, force people to attend a theistic church (but not a specific one) and express theistic views, and punish people for expressing atheistic or agnostic beliefs. In other words, the First Amendment in that view would not bar breathtaking government violations of freedom of conscience.

One problem is that many religious beliefs are not theistic (God-oriented). Wikipedia includes in this category Buddhism, some forms of Christianity (!), Hinduism, Janism, Comte's "religion of humanity," and others. (Wikipedia lists one variant of Satanism as nontheistic, although other variants plainly are theistic. Somehow I doubt that theistic Satanism is what Natelson has in mind!) Maybe Natelson would backtrack a bit and say that the First Amendment protects all people with supernaturalist beliefs (except maybe Satanists and the like?), not just theists. If we stuck to the view that the First Amendment protects only theists, it automatically favors some religious views (theistic ones) over others. That would plainly "establish" some religions over others.

Defining what counts as a theistic belief is not so easy, as Spinoza could attest. If I say "the universe is God," am I a theist or an atheist? What if I say that Gaia is God? Or that nature is God? Or that people are gods? Or that the universe is filled with gods? The Founders whom Natelson quotes had monotheism in mind and had not fully thought out the logical implications of their pro-theist position.

Likewise, if we said that the First Amendment favors supernaturalist beliefs (not necessarily theistic ones) over naturalist beliefs, then we'd have to get into the weeds of what counts as a supernaturalist belief. Does Platonic belief in the Forms count as religious? What about Marxism? Leonard Peikoff argues, "Despite all its anti-religious posturings, Communism is nothing but a modern derivative of religion. . . . [Communists] do reject God, but they replace him with a secular stand-in, Society or the State, which they treat not as an aggregate of individuals, but as an unperceivable, omnipotent, supernatural organism." Some forms of Buddhism are not supernaturalist. So if we took the First Amendment to favor supernaturalist beliefs, then we'd have to further define what counts as supernaturalist, and government would then be putting its weight on the scales in favor of whatever beliefs and practices it accepted as supernaturalist.

The upshot is that, if we interpreted the First Amendment along the lines that Natelson recommends based on his historical analysis, we'd quickly fall into exactly the sorts of problems that the First Amendment was intended to remedy. We'd have government trying to define what counts as theism or supernaturalism and then giving preferential treatment to certain ideas and their adherents over others. But the entire point of of the First Amendment is to get government out of the business of trying to influence or dictate what we believe regarding such matters.

Again, my approach is to read the First Amendment straightforwardly, looking at what it actually says, and interpret it according to its logical implications and its logical relation to the broader Constitutional project. The First Amendment protects the free exercise of religion and prevents government from establishing religion, just like it says.

One point obvious today is that Natelson and the Founders he quotes plainly are wrong about the necessity of theistic religion for public morals and for liberty. The most strongly theistic societies today are Islamic totalitarian ones, such as Afghanistan, where members of the Taliban brutalize women in the name of their theistic faith. Meanwhile, some of the least religious societies also are the most successful and rights-respecting ones, and the decline of religion generally has accompanied improved public morals. (Marxism is the obvious exception, though, again, we can see Marxism as a sort of religion.) Just as a factual matter, the case that government must enforce or promote specifically religious beliefs and values, in order to maintain public safety or public liberty, is nonsense. And we ought not limit the First Amendment, or any Constitutional text, to the errors and prejudices of the past.

A final point: Natelson speaks ambiguously about "freedom from religion." There is a sense in which people properly may choose to be free from religion, and a sense in which they may not. Government should not force people to subsidize religious views or institutions, profess religious beliefs, or practice religious rites. In that sense, people have the right to be free from religion. Of course people do not have a right to censor the religious beliefs of others or in any way to restrict the rights-respecting religious practices of others. In that sense, people may not properly try to forcibly rid their societies of religion. Or, to restate the point, people properly have freedom of religious worship, and government should not act to establish religion.

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