Notre Dame Law Review Volume 75 | Issue 2 Article 3 12-1-1999 Religion and State--A Fresh Theoretical Start Gidon Sapir Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation Gidon Sapir, Religion and State--A Fresh Theoretical Start, 75 Notre Dame L. Rev. 579 (1999). Available at: http://scholarship.law.nd.edu/ndlr/vol75/iss2/3 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. RELIGION AND STATE-A FRESH THEORETICAL START Gidon Sapi* I. INTRODUCTION ........................................... 580 II. DEVELOPING COMMON VOCABULARY ....................... 584 A. Three Fundamental Concepts ............................ 584 B. Four Interpretationsof Nonestablishment.................. 586 1. Strict Interpretation .............................. 587 2. Neutrality Interpretation ......................... 588 3. Non-Coercion Interpretation ..................... 590 4. Non-Institutionalization Interpretation ............ 592 1II. WHY NONESTABLisHMNT ................................... 593 A. Nonestablishment Is Required to Avoid Civil Strife ......... 593 B. Religion Is of Little Importance to the Civil State .......... 598 C. Support of Religion Qua Religion May CorruptReligion .... 601 D. Support to Religion May Offend Nonbelievers ............. 606 E. Nonestablishment as a Means to Promote Autonomy ....... 607 1. Introduction-Political Liberalism v. Perfectionist Liberalism ....................................... 607 2. The Value of Autonomy and the Necessity of Neutrality ........................................ 609 3. Rejection-Promoting Autonomy Does Not Require Strict Nonestablishment ................. 610 4. Rejection-Promoting Autonomy Requires Deviation from Strict Nonestablishment .......... 611 F. What the Commitment to PersonalAutonomy Does Imply ... 614 G. Three Common Arguments Against the Non-Coercion Interpretation ......................................... 617 H . Conclusion............................................ 620 * Lecturer, Bar-Ban University, Faculty of Law; Senior Lecturer, Northwestern University School of Law. Rabbinic Degree, Har Etzion Yeshiva, 1989; LL.B., Bar-Ilan University, 1993; LL.M., Northwestern University, 1996; SJ.D., Northwestern, 1998. The author is indebted to Stephen Gardbaum, Abner Greene, Andrew Koppelman, Michael Perry, Daniel Statman, and Laura Underkuffler for their valuable comments on an earlier draft. NOTRE DAME LAW REVIEW [VOL- 75:2 IV. FREEDOM OF RELIGION .................................... 622 A. Introduction .......................................... 622 B. Why Freedom of Religion................................ 623 1. Religion Is a Belief System Which the State Cannot Evaluate ......................................... 623 2. Freedom of Religion as a Prerequisite to the Religious Person's Ability to Practice His Freedom of Choice ........................................ 625 a. Introduction-The Right to Culture .......... 625 b. Religion as a Cultural System ................. 631 c. Religion as Culture and the Problematic Task of Defining Religion ......................... 632 d. Religion as Culture and Nonestablishment .... 633 e. Religion as Culture and Major Freedom of Religion Cases ............................... 639 3. Freedom of Religion as a Method to Accommodate the Duties of Religious People ................... 641 4. Religion Provides Moral Inspirations and Balances State Power ...................................... 643 C. The Scope of Freedom of Religion ........................ 644 1. The Position Respecting Accommodation Is Not Linked to the Attitude Towards Religion ......... 644 2. Why Not Accommodation? The Alleged Clash with the Requirements of Nonestablishment ........... 646 V. THE PROPOSED MODEL ..................................... 650 VI. CONCLUSION ............................................... 651 I. INTRODUCTION In 1689, John Locke published a revolutionary essay entitled A Letter Concerning Toleration. In the opening of this essay Locke made the following statement of purpose: I esteem it above all things necessary to distinguish exactly the busi- ness of civil government from that of religion, and to settle the just bounds that lie between the one and the other. If this be not done, there can be no end put to the controversies that wiU be always aris- ing .... I Locke argued that religious controversies are passionate, irresolv- able,2 and dangerous. He called, therefore, for removing religious is- 1 JOHN LOCKE, A LETTER CONCERNING TOLERATION (1689), reprinted in JoHN LocKE: A LETTER CONCERNING TOLERATION IN Focus 17 (John Horton & Susan Mendus eds., 1991) [hereinafter TOLERATION IN Focus]. 2 See id. at 24. 1999] RELIGION AND STATE-A FRESH THEORETICAL START 581 sues from the table of public discussion in order to avoid "all the bustles and wars, that have been ... upon account of religion."3 To those concerned that the potential consequences of removing reli- gious issues from the table of public discussion would work against the religious cause he replied that such removal is not so detrimental, for two reasons. First, religious belief is based on inner conviction and hence cannot be coerced.4 Second, the essence of true religion is the war everyone must wage "upon his own lusts and vices"5 in the realm of private belief, and therefore, religious disputes are of little practical importance to the civil government. In a recently published article on church and state, Stanley Fish correctly observes that "[t]he modern contours of the debate concern- ing the relationship between church and state were established in 1689 by Locke in A Letter Concerning Toleration, and discussion of the issue has not advanced one millimeter beyond Locke's treatment even though over three hundred years have passed."6 Lockean positions are still dominant in the contemporary discourse over the relationship between religion and state, although Western scholars and politicians are in significant disagreement respecting the proper degree of sepa- ration between religion and state required to serve the Lockean goal. In this Essay I challenge many of the Lockean premises, as well as other standard arguments commonly utilized, and propose a model for regulating the relationship between religion and state that is based upon premises that significantly differ from Locke's. In Part II, I engage in a conceptual clarification, and make the distinction between three specific facets of the relation between reli- gion and state-freedom of religion, freedom from religion, and nonestablishment. I also describe four possible interpretations of nonestablishment, which I call strict, neutrality, non-coercion, and non-institutionalization. For every church is orthodox to itself; to others, erroneous or heretical. Whatsoever any church believes, it believes to be true; and the contrary thereupon it pronounces to be error. So that the controversy between these churches about the truth of their doctrines, and the purity of their worship, is on both sides equal; nor is there any judge, either at Constantinople, or elsewhere upon earth, by whose sentence it can be determined. The deci- sion of that question belongs only to the Supreme Judge of all men .... Id. 3 Id at52. 4 See id. at 18 ("[S]uch is the nature of the understanding, that it cannot be compelled to the belief of any thing by outward force."). 5 Id. at 14. 6 Stanley Fish, Mission Impossible: Setting the Just Bounds Between Church and State, 97 CoLum. L. R-v. 2255 (1997). NOTRE DAME LAW REVIEW[ [VOL- 75:2 In Part III, I evaluate various rationales for nonestablishment, aiming to demonstrate that of the four interpretations of nonestab- lishment only the last two interpretations-non-coercion and non-in- stitutionalization-are practically required and morally justifiable. I begin with four standard arguments for nonestablishment-the need to avoid civil strife, the limited importance of religious disputes to the civil state, the concern that support to religion may offend nonbe- lievers, and the fear that support to religion qua religion may corrupt religion. Of these four rationales I reject the first three and only ac- cept the fourth. I then argue that while the dangers to the purity of religion, posed by not separating religion and state, are no doubt very real, strict nonestablishment or even government neutrality toward religion are either unnecessary or unacceptable as a means of avoid- ing religious corruption. Such measures are unnecessary because an- other, less extreme, measure-namely non-institutionalization of religion-is sufficient to reduce the risk of religious excesses; they are unacceptable because the application of any of them would deny cer- tain religions the ability to forward their lofty goals. Having examined the traditional argumentation regarding nonestablishment, I proceed to explore a new path. The "avoiding offence" argument could not be sustained, as noted. Yet it does have one feature that I find appealing: it does not single-out religion as deserving special treatment; it is not aimed specifically against estab- lishment of religion but rather against the establishment of any sectar- ian substantive position respecting the nature of the good life. This opens a new road to explore. The question to be answered is no longer why should the state not establish religion but rather why should