Examinación microscópica de cabellos

Since originalist interpretations of the Establishment Clause uni- formly reject the secular purpose doctrine in favor of allowing reli- gious justifications for state action,220

there would seem to be little point in belaboring the moral criticism that follows from rejection of that doctrine, let alone from the refusal to consider an expanded ver- sion of it. And yet the most prominent originalist interpretations of the Establishment Clause are subject to another equally fundamental criticism, which is that by relying on a theistic conception of religion, they allow for the possibility of pervasive discrimination against secular doctrines. First, under the jurisdictional theory of the Estab- lishment Clause, Congress is prohibited from legislating with respect to state religious establishments.221

According to this interpretation, the Establishment Clause does not incorporate any substantive prin- ciple of religious liberty. It merely prohibits federal interference with state regulations of religion. Under a second theory, the Establish- ment Clause prohibits the federal government and perhaps the states (given incorporation through the Fourteenth Amendment) from preferring one religion to another.222

The principle of “nonpreferen- tialism” requires evenhandedness or neutrality between religions but not between religion and nonreligion. Third, in addition to demand- ing religious or denominational neutrality, the Establishment Clause is often interpreted as forbidding state coercion of religious belief and practices.223

All of these theories are open to the same objection, which is that nothing in any of them prevents the federal or state govern- ments from persecuting atheists, agnostics, and other nontheists, or prohibiting the expression and dissemination of secular moral views. The jurisdictional account would not bar the federal government

220 I am not aware of any originalist account that accepts the secular purpose doctrine.

For its rejection, see, for example, McConnell, 1 J L Phil & Culture at 161(cited in note 19).

221 See Elk Grove Unified School District v Newdow, 542 US 1, 49–50 (2004) (Thomas

concurring); Steven D. Smith, The Jurisdictional Establishment Clause: A Reappraisal, 81 Notre Dame L Rev 1843, 1843–45 (2006).

222 See, for example, Wallace v Jaffree, 472 US 38, 113 (1985) (Rehnquist dissenting)

(claiming the Establishment Clause was intended to prevent Congress from privileging one

religious group over another); Robert L. Cord, Separation of Church and State: Historical Fact

and Current Fiction 5(Lamberth 1982) (same). But seeDouglasLaycock, “Nonpreferential” Aid to Religion: A False Claim about Original Intent, 27 Wm & Mary L Rev 875, 876–78(1986) (rejecting nonpreferentialism on originalist grounds).

223 SeeMichael W. McConnell, Coercion: The Lost Element of Establishment, 27 Wm &

Mary L Rev 933, 935 (1986). But see Douglas Laycock, “Noncoercive” Support for Religion:

Another False Claim about the Establishment Clause, 26 Valp U L Rev37, 41–48 (1992) (reject- ing noncoercive theory on originalist grounds).

from intervening in state affairs to prohibit secular doctrines since such regulations would not, by definition, count as respecting estab- lishments of religion, defined in theistic terms. Nonpreferentialism only requires government neutrality between religions and explicitly rejects neutrality between religion and nonreligion. Under this theo- ry, nothing would prevent the state from coercively imposing a gen- eral requirement to engage in some religious practices (for example, attending church), provided people are allowed to decide which ones.224

Lastly, the anticoercion theory might protect nonbelievers from such requirements.225

But it would not save them from govern- ment policies aimed not at coercing religion but at disparaging and suppressing nonreligious or antireligious doctrines.226

Of course, other provisions of the First Amendment, including the Free Speech Clause, might be interpreted to prohibit such regulations. Again, however, this way of avoiding moral criticism of the Religion Clauses requires appealing to constitutional liberties outside the scope of the Establishment Clause, at least under the leading originalist interpre- tations of it.

The argument for rejecting originalist theories of the Free Exer- cise and Establishment Clauses as morally inadequate does not re- solve the gap between the law, which treats religion as distinctive, and political morality, which does not. A resolution would either bring the law into conformity with political morality or reinterpret political morality to make it consistent with the law. The argument above does neither of those things. Instead, it tells us that the law is broken, defective, or deficient, and that it ought to be changed.

Unlike the four theories of the Religion Clauses surveyed above, all of which hold that the proper understanding of the consti- tutional text fits with the best interpretation of political morality, the account offered here contemplates that law and morality might be at odds with one another in this domain. And to the extent there is a conflict, it suggests the possibility that the law ought to be modified, revised, or amended, or, if that is not possible, that other remedies

224 See Laycock, 26 Valp U L Revat 39 (cited in note 223).

225 SeeMcConnell, 103 Harv L Rev at 1499 (cited in note 60) (“[T]he prohibition on an

establishment of religion should suffice to protect unbelievers from discrimination, ill-

treatment, or coercion.”).But seeFreeman, 71 Georgetown L J at 1523 (cited in note190)

(“[T]here appears to be no evidence to suggest that the Founders intended for the establish- ment clause to be construed as the nonbeliever’s free exercise clause.”).

226 Nor would the noncoercive theory protect religious minorities from government sup-

port for religious doctrines that conflict with their own. SeeLaycock, 26 Valp U L Revat 39

(cited in note 223) (arguing that, under a noncoercive theory, “Congress could charter the Church of the United States, so long as it did not coerce anyone to join”).

ought to be considered, perhaps as a matter of statutory law.227 Ab-

sent some change, however, this accountleads to the conclusion that

the law is morally regrettable. Although the Religion Clauses were a great moral accomplishment at the time they were enacted, they no longer capture our best understanding of political morality, at least not when interpreted according to their original meaning. The mean- ing of the law may not change, but our moral sensibilities most cer-

tainly do. On this view, then, our Constitution is not perfect.228

It could be better.