The Religion Clauses: The Case for Separating Church and State by Erwin Chemerinsky & Howard Gillman

Author:Erwin Chemerinsky & Howard Gillman
Language: eng
Format: mobi
Tags: Law, Dictionaries & Terminology, General
ISBN: 9780190699741
Publisher: Oxford University Press
Published: 2020-07-29T21:00:00+00:00

We think that Justice Kennedy got it right in his Lukumi decision: Religious practitioners cannot claim exemptions from neutral laws of general applicability, but the Court should be on guard against efforts by government officials to offer secular justifications as pretexts for laws that are actually motivated by religious animus.

As with Smith, under this approach the Free Exercise Clause would prohibit efforts to punish or discriminate against people for their religious beliefs and would prohibit laws that target conduct associated with worship. By the same logic, this approach also recognizes what has been called the “Church Autonomy principle,” which holds that “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final and binding on them, in their application of the case before them.”35 More generally this doctrine recognizes the right of religious institutions to select their clergy, control their doctrine, and determine how the organization is to be governed, without interference from the government.36 There will always be controversies over how far the church autonomy principle should be extended—for example, if we allow religious institutions to discriminate on the basis of religion in hiring their clergy can they also discriminate when hiring religious school teachers or janitorial staff? But we believe the Free Exercise Clause should be interpreted to ensure that the internal operations of religious institutions with respect to doctrine, worship, and membership should be decided by religious practitioners and not by the government.

However, we agree with the Smith Court that neutral laws of general applicability may restrict matters of worship and even church autonomy. The right to build a church or school is subject to the ordinary laws that govern zoning and building. The right to conduct worship services is subject to general time, place, and manner restrictions governing all matters where groups organize themselves in public. Proselytizing is subjected to regular laws governing free speech, including, for example, laws that restrict all solicitations at a state fair to a fixed-booth location.37 Relationships between clergy and laity are subject to the ordinary civil and criminal law, including laws protecting people from abuse or assault or requiring people to report crimes or refrain from participating in the cover-up of crimes. As one scholar puts it, “Society is not duty bound by any constitutional right to let [religious entities] avoid duly enacted laws, especially where their actions can harm others. To say that religious liberty must encompass the right to harm others is to turn the First Amendment on its head.”38

At the same time, Lukumi reveals that government officials hostile to religious practitioners rarely say explicitly that their regulations are motivated by religious animus. If religious practitioners should be required to acquiesce to neutral laws of general applicability, the Court should take care to ensure that the law is reasonably understood to arise from secular considerations of public policy.

There are five main reasons to prefer this approach to the Sherbert/Yoder strict scrutiny experiment.

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