Alabama Law Scholarly Commons Working Papers Faculty Scholarship 1-23-2012 Law, Religion, and Kissing Your Sister Paul Horwitz University of Alabama - School of Law, [email protected] Follow this and additional works at: https://scholarship.law.ua.edu/fac_working_papers Recommended Citation Paul Horwitz, Law, Religion, and Kissing Your Sister, (2012). Available at: https://scholarship.law.ua.edu/fac_working_papers/540 This Working Paper is brought to you for free and open access by the Faculty Scholarship at Alabama Law Scholarly Commons. It has been accepted for inclusion in Working Papers by an authorized administrator of Alabama Law Scholarly Commons. HORWITZ 1/21/12 11:38 AM Law, Religion, and Kissing Your Sister PAUL HORWITZ* * Gordon Rosen Professor, University of Alabama School of Law. I am grateful to Noah Jones and Michele Marron for research assistance. 1 Electronic copy available at: http://ssrn.com/abstract=1989888 HORWITZ 1/21/12 11:38 AM INTRODUCTION Two aspects of the Symposium contained within these pages are especially noteworthy. The first is its high quality. The reader holds in his or her hands an exceptionally strong collection addressing some of the most fundamental issues of church-state relations. One reason for this, perhaps, was the timeliness of the Symposium: coming as it did so soon after the oral arguments in the Supreme Court case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC,1 its participants were closely focused on some sharp divisions within the field of law and religion, and the resulting papers show it. The second is the outcome of the Symposium, which I can only characterize as a tie. Two participants—Caroline Mala Corbin and Corey Brettschneider—argue forcefully that religious liberty and church autonomy must sometimes give way to the needs and claims of the state, because certain widely shared state values—in particular, non-discrimination and of equal citizenship—enjoy primacy over the interests of subordinate private institutions such as churches. At the very least, the state can and should refuse to extend any significant accommodations to those groups, declining to accord them the same recognition that other groups, groups that follow a state-centered understanding of those public values, are entitled to receive. Even if the state allows these groups to express views that run contrary to those central state values, it certainly should not subsidize those organizations and their viewpoints. Rather, it should “criticize their discriminatory viewpoints and explain why they are inconsistent with a respect for all citizens as free and equal.”2 By focusing on subsidies rather than direct regulation, Corbin and Brettschneider purport to leave some room for the autonomy of churches and other non-state entities. In reality, however, both papers subordinate those entities to the state, and are emphatic in allowing the state itself to frame our understanding of terms like “discrimination.” On the other side, both Rick Garnett and Steve Smith present strong arguments for a broad understanding of church autonomy. Just as important, they argue that the “freedom of the church” is every bit as much a core public value as non-discrimination.3 That means that at times, as in the Hosanna-Tabor case, churches must remain free to “discriminate” no matter what some generally applicable law says. Thus, we have a sharply joined conflict over whether state values or church autonomy are to prevail in important church-state 2 Electronic copy available at: http://ssrn.com/abstract=1989888 HORWITZ 1/21/12 11:38 AM [VOL. 45: 2, 2008] Law, Religion, and Kissing Your Sister disputes, a conflict that is all the more starkly represented here by the presence of a straight 2-2 tie between the contending positions.4 The tie made for an exciting conference. Now that the dust has settled, however, one may ask whether it allows us any room to move forward. In my position as a commenter, I do not seek to break the tie myself, although it will become evident that my sympathies lie on one side of the contest. Nor will I focus solely on the immediate paper I am considering, Rick Garnett’s thoughtful paper on religious freedom and the many meanings of nondiscrimination.5 Instead, it is the tie itself that fascinates me, and what it suggests about the nature of both church-state disputes and law and religion scholarship. Most legal academics are notoriously normative in their scholarly orientation: keen on pushing legal reforms or pet theories about what constitutes the “right” answer to some question, and less interested in simply trying to understand the law and its social background on a purely descriptive level.6 That is especially true of constitutional law professors,7 including those working in the field of law and religion. There is little professional reward, and rarely much internal motivation, for a law and religion scholar to content himself with simply describing church-state law as it is, or with exploring why this area is so prone to eternally recurring clashes of incommensurable values, leading to contests that are apparently incapable of any final resolution.8 Again and again, someone will insist that some value or approach—equality, liberty, “equal liberty,”9 public reason, originalism, and so on—holds the key to a better, and perhaps even a final, legal resolution of church-state conflict. For the most part, law and religion scholars are a gaggle of Gatsbys.10 That sentiment is not universally held, however. A few scholars of law and religion, including myself, have been interested in seeing the cup as half-empty, not half-full.11 We have focused on the ways in which the nature of the individual and institutional conflicts involved in law and religion, and the incommensurable values at play, present us with ineluctable “tragic choices”—how they leave us time and again with “moral remainders,” the leftovers that result from a decision that does not perfectly resolve a moral conflict.12 We have emphasized the tragic, the sense of what can never be achieved, over the comic, the hope that thinking hard about law and religion can lead us to some kind of happy ending that more or less satisfies everyone.13 Not for us the 3 Electronic copy available at: http://ssrn.com/abstract=1989888 HORWITZ 1/21/12 11:38 AM “green light, the orgiastic future.”14 In thinking about the role of ties or impasses in the scholarship and jurisprudence of law and religion—about their inevitability and why they are inevitable, about the moral remainders left in their wake, and about whether we can do anything to minimize those remainders or at least salve our wounds—we might look to another lawlike field in which ties used to be common. Once upon a time, many sporting contests ended in ties. That appears to be the case no longer. Most sports have instituted some form of tiebreaker, from overtime or sudden-death play, to rematches, to random decisions such as a coin toss.15 There are a number of possible reasons why ties have come to be disfavored in sports.16 Probably the most convincing have to do with baser motives: as championship play becomes more lucrative in sports, ties just won’t do. Others have suggested a more ethically and sociologically interesting justification, although perhaps one that isn’t so different in the end: as sports have ceased being “gentlemen’s” games, the tie has correspondingly fallen out of favor. Whatever the reason, it is evident that tie games in sports are disliked by many. A college football coach once famously likened such ties to “kissing your sister.”17 Although complementary in an instructive way,18 there are, of course, important differences between law and sports.19 Among other things, all but the most rabid sports fan (although there are surprisingly many of those, at least in places like South Bend and Tuscaloosa) would agree that the resolution of a real-life dispute over matters like the relationship between church and state is far more important than who wins a football game. Still, the comparison may refresh our thoughts on this matter. It may help us to think not about who ought to have won the tie-game that resulted from the Matters of Faith conference, but about the meaning of the tie itself. The remainder of this commentary proceeds as follows. I begin by discussing why the papers in this book can aptly be called a tie. I then discuss standard ways of resolving those ties in legal scholarship and jurisprudence involving church-state relations, and why those attempts fail. I close with some reflections on how we might view law and religion as an eternal tie game, and what—if anything—we can or ought to do about it. I. “MATTERS OF FAITH” AS A TIE GAME The basic issue canvassed in this collection is basic enough: how 4 HORWITZ 1/21/12 11:38 AM [VOL. 45: 2, 2008] Law, Religion, and Kissing Your Sister and when must law accommodate religion, if it must do so at all? When should the general laws and policies of a state give way to the needs of religious individuals and groups, and when must the latter give way to the state? Stated so broadly, this is simply the basic issue of church-state relations in a nutshell. The speakers in this symposium chose to focus on two illustrative issues, one dealing with a question of positive constitutional law and the other dealing with an issue that might be characterized as one of state policy. The first issue involves the case of Hosanna-Tabor Evangelical Lutheran Church & School v.