Incorporation and Religious Freedom

June 1, 2006 10:52 AM

Federalism and Faith. [more inside]
posted by monju_bosatsu (16 comments total)

From the abstract:

Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court’s decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy.

This paper offers a focused (re)consideration of federalism and faith. Part I offers a succinct look at federal-state relations on the subject of religion prior to Reconstruction. Part II confronts the constitutional developments that emerged from the Civil War and Reconstruction, and traces the Reconstruction story into the 20th century, when the Supreme Court first applied the Religion Clauses to the states. Part III then briskly chronicles the rise of Separationist interpretations of both Religion Clauses, and the incomplete recession to narrow interpretations of the Religion Clauses that mark the past several decades.

Part IV represents our contextualized effort to add value to the conversation about faith and federalism. State discretion over religion policy is a function of two considerations - the substantive content of the First Amendment, and the extent to which the First Amendment binds the states. In order to test a series of intuitions about faith and federalism, we analyze in Part IV a series of three problems– one in which the state pursues Separationist goals, and the other two in which the state appears to be promoting or aiding religion. Part IV considers these problems within three, distinct regimes of federalism: 1) the current regime of full incorporation of the First Amendment’s Religion Clauses; 2) a regime in which the states remain bound by the Free Exercise Clause but are liberated from the Establishment Clause; and 3) an imagined regime of partial incorporation, designed to maintain core non-Establishment norms while explicitly expanding state discretion in the periphery of non-Establishment. We believe that exploration of these problems, and of contrasting regimes of state discretion, will cast considerable light on what is at stake in the battle over federalism and faith.

posted by monju_bosatsu at 10:53 AM on June 1, 2006

The way the Supreme Court has been working lately, they'd probably find some way of applying the commerce clause to religion if the establishment clause no longer applied.
posted by mullingitover at 11:25 AM on June 1, 2006

Q: Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion?

A: No. Simple. next Question?

To clarify my reason for this:
The constitution SETS the basic individual rights! they Trump States Rights in this case, simple as that. the state Shall not infringe on the individuals right to worship. note I bolded individual, not a collection of individuals or organization , but Individual. Pray in school;, at work at a game even when signing legislation, just don't make me wait while you do, or harass me when you do. nor demand I stop doing what ever legal activity I am currently doing till you finished.
posted by Elim at 11:45 AM on June 1, 2006

Elim, that may be true for amendments II-X, but the first amendment specifically spells out what congress may do, it makes no mention of what the states may do re: religion & free speech.
posted by atrazine at 11:50 AM on June 1, 2006

Amendment I - Congress shall make no law respecting ......
I would guess your point boils down to Cogress won't but the State, County, and/or City can?
posted by Elim at 11:54 AM on June 1, 2006

Elim, the problem, as discussed by the article, is that the Bill of Rights always restricted Congress, or the federal government generally, and did not apply to the states. It was not until the ratification of the Fourteenth Amendment and subsequent cases that portions of the Bill of Rights were incorporated against the states. While it's easy to see how the free exercise clause is applied against the states, such application is more difficult with respect to the Establishment Clause. Some commentators and jurists, including Justice Thomas argue that the Establishment Clause was originally designed to protect the states from federal interference, and that application against the states flips the Clause on its head. So no, the question isn't simple.
posted by monju_bosatsu at 11:57 AM on June 1, 2006

I would argue that the first amemndment was designed to protect the people and not the institutions or states. then it does become simple. and we all like simple things don't we? *wink wink*
posted by Elim at 12:04 PM on June 1, 2006

Everybody but lawyers (not that there aren't good reasons for that)
posted by InfidelZombie at 12:14 PM on June 1, 2006

Tru dat, Yo
posted by Elim at 12:18 PM on June 1, 2006

It still amazes me how many folks just about demand to do what the Constitution itself and common sense blatantly hints is not that good of an idea.
posted by Elim at 12:20 PM on June 1, 2006

Elim, most of the colonies at the time of the ratification of the Bill of Rights had established religions. It cannot be the case that the Establishment Clause was intended to eliminate those establishments. That's common sense, for you. Why should there be a difference now? The answer must be found, somehow, in the Fourteenth Amendment.
posted by monju_bosatsu at 12:26 PM on June 1, 2006

I agree, unfortunately No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States is the best we have to defend what should be impregnable. so Pray in school, at work at a game even when signing legislation, just don't make me wait while you do, or harass me when you do. nor demand I stop doing what ever legal activity I am currently doing till you finished. should be considered an immunity from an enforced religion.

Again simple, but also again, I'm not a lawyer.
posted by Elim at 12:41 PM on June 1, 2006

Apparently this revolves around federal / state authority? In general it seems like the federal influence has always been for the 'good'. The feds organized just wars (in the past anyway), freed the slaves, later fought against segregation, built highways, lifted up womens rights - often against strong state opposition.

So far - feds good, states bad.

Now with religion, we have a very specific case of the law being designed to protect the states from the feds. If I understand correctly (always a bit of a question mark) the original states were primarily concerned with the feds interfering with their established religious practices. They didn't want another European situation where smaller groups were being persecuted by a larger authority. They wanted to be left alone to worship God as they saw fit.

Question: if the feds continue their winning streak of dominating the states on these huge social issues, will this mean they've maintained a perfect record of improving society or would this be their first mistake?
posted by scheptech at 1:34 PM on June 1, 2006

I seriously doubt whether many states want to see the 14th Amendment narrowed sufficiently to restore the Framer's conception of state's rights insofar as religion goes.

With the exception of a few dead-on-arrival proposals to create a constitutional right to school prayer, there's been no kind of movement along these lines, and the Supreme Court would be moving aggressively to act where the people have shown no appetite in the 40+ years they've had to do.

The alacrity with which Alabama authorities ousted Roy Moore from the Chief Justice position is a pretty good sign that even the most religiously observant sections of this country don't want to go down this road. Roy Moore as governor (for which he's running now) may make more sense: a position where religious beliefs can guide his policy decisions (as is eminently Constitutional under any conception of the First and Fourteenth Amendments) but the state, at the level of its official acts and symbols, is reasonably restrained in how aggresively sectarian it can be.
posted by MattD at 1:35 PM on June 1, 2006

"The constitution SETS the basic individual rights!" -- Elim

A popular interpretation - but in fact the Constitution expressly rejects this interpretation. The greatest amendment IMHO, though unfortunately the one most overlooked in Costitutional jurisprudence:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Despite this clear statement - or rather because of its broad implications - the USSCt. has many times placed decisions on other bases when this one would be more suitable, and has implicitly held to the idea that the Bill of Rights is exclusive of other rights.

Full extension of the amendments to the states could well be premised on the line you quote from the 14th amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") and another which I don't recall at the moment, but the Supremes have applied them to the states only in specific ways. This is apparently intended to keep the option open of going the other way on other cases as much as it is for deciding cases narrowly.

Also on preview I agree with MattD, but there is a troubling push for theocracy in some quarters.
posted by jam_pony at 2:32 PM on June 1, 2006

IANAL of any description, but I have heard several constitutional scholars assert forcefully that the right to freedom of religion has already been "incorporated" and that that precedent is well established in Supreme Court rulings.

But even if that wasn't the case, couldn't one bring a claim under the "equal protection" provision of the 14th amendment? How could members of religion B possibly be receiving "equal protection" under the laws if religion A is established as the "state religion"?
posted by yoink at 4:36 PM on June 1, 2006