Two New Church / State Articles Worth Reading

Two new church-state papers are now available on SSRN. The first, by our new co-blogger Professor Michael Perry, is called "What do the Free Exercise and Non-Establishment Norms Forbid?" Here's the abstract:

The Constitution of the United States famously declares, in the First Amendment, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Yet, it is settled constitutional law that not just Congress but the entire national government - and not just the national government but state government too - may not establish religion or prohibit the free exercise thereof. For Americans today, the serious question is not whether the free exercise norm and the nonestablishment norm - the two principal matrices of the constitutional law of religious freedom - apply to the whole of American government, including state government. They do so apply. The serious question is not even whether the free exercise and nonestablishment norms should apply to the whole of American government. In the judgment of most Americans who bother to think about the matter, they should so apply. It is not surprising, then, that the sovereignty of the two norms over every branch and level of American government is constitutional bedrock.

For Americans today, the serious question, regarding the free exercise and nonestablishment norms, is this: What does it mean to say that government, state as well as national, may neither prohibit the free exercise of, nor establish, religion? In particular, what sorts of government action - laws, policies, etc. - do the free exercise and nonestablishment norms forbid? At the risk of understatement: Not every scholar or judge gives the same answer to this question. My aim here is to give the answer that makes the most sense to me.

The second paper is by Emory's Professor John Witte, and is called "From Establishment to Freedom of Public Religion." Here is the abstract:

This Article juxtaposes the theories of religious liberty developed by Thomas Jefferson and John Adams. It argues that Jefferson's notion of a "wall of separation between church and state" was a minority view in his day, and in the century to follow. More commonplace was Adams' view that balanced the freedom of all peaceable private religions with the "mild and equitable establishment" of one public religion. Adam's model of religious liberty dominated much of nineteenth-century law and culture, Jefferson's model a good bit of twentieth-century law and culture. In its most recent cases, the U.S. Supreme Court seems to be developing a new model of religious liberty that draws on the insights of both Jefferson and Adams, but rejects their respective calls for the privatization or the establishment of religion. The Court's formula is that both private and public forms of religion deserve constitutional freedom and support, though neither may be given preferential treatment.

Both of these excellent articles are quite timely, in light of contemporary discussions about the Pledge and the tax-exempt status of Catholic dioceses whose bishops decide to address the abortion-rights views of political figures.

Rick