Minority Religions and the Religion Clause

Professor Tom Berg, of the University of St. Thomas, has a new paper up on SSRN called "Minority Religions and the Religion Clause." Here is the abstract:

This Article explores a minority-protection approach to interpreting the First Amendment's Religion Clauses. Under such a theory, the Religion Clauses together should be read to protect minority religious beliefs and practices from government burdens, and to equalize the status of minority religions before the government with that of majority faiths. Protecting minorities is not the sole or overriding purpose of the clauses, but it is a significant one. I build on previous scholarly work concerning religious minorities, but in some respects I critique them and reach different conclusions about where a minority-protection approach properly leads.

Part I argues that protection of minority religions should be an important consideration in interpreting the Religion Clauses. Part II addresses difficulties and complications in the idea of protecting minority faiths. The constitutional text protects all religious faiths, not just minorities. In addition, defining which faiths are minorities is more complicated than previous commentators have allowed. Because of America's complex patterns of religious identities, who is a minority will often vary depending on the geographical location, on the institutional setting of a legal dispute, and on how one chooses the key religious differences that sort groups into different categories.

Given these complications, courts generally should refrain from singling out certain religious groups as minorities and treating them differently than other groups. Instead, courts should develop principles for various cases that are applicable to all faiths, but that tend to protect whoever happens to be a minority in the given geographical location, institution, or cultural atmosphere.

Part III develops such principles for the leading categories of Religion Clause disputes. As other commentators have argued, courts seeking to protect religious minorities should read the Free Exercise Clause expansively to exempt religiously motivated conduct from certain laws that impose significant burdens on the conduct. Likewise, the Establishment Clause should be broadly interpreted to restrict government-sponsored religious practices in public schools and other government institutions because of their inherent majoritarian bias.

However, contrary to the common strict-separationist wisdom, permitting government assistance for private religious education and social services can have positive aspects for many religious minorities. The Court's increasing approval of programs of aid is quite defensible under a minority-protection approach, if the program includes measures to protect children and families from being pushed into schools that teach a faith different from their own.

By the way, I'm blogging today from the new law school at the University of St. Thomas, in Minneapolis. Minnesota. The school's facility is fantastic, as is the community of scholars they have assembled in just a few short years. Here is the school's web site. I note that the school's "vision statement" includes the following: "The mission of the University of St. Thomas School of Law , as a Catholic law school, is to integrate faith and reason in the search for truth through a focus on morality and social justice."

Rick