The Role of the Local in the Doctrine and Discourse of Religious Liberty

• Published in: Harvard law review 2004-04, Vol.117 (6), p.1810-1892
• Main Author: Schragger, Richard C.
• Format: Article
• Language: English
• Subjects: Church & state; Clauses; Communities; Constitutional law; Decentralization; Establishment clause; Federal government; Free exercise clause; Freedom of religion; Funding; Government; Jurisprudence; Legal protection; Legal theory; Local government; Political science; Religion; Religious freedom; Religious laws; Religious minorities; Religious practices; State government; Studies; U.S.A
• ISSN: 0017-811X; 2161-976X
• DOI: 10.2307/4093305

Much of the Supreme Court's modern Religion Clause doctrine has been forged in conflicts that directly implicate the traditional powers of local governments: primary and secondary education, land use, police powers. Constitutional theorists have rarely treated this juris dictional fact as significant because the post-incorporation Court has never made a distinction among levels of government when considering Establishment or Free Exercise Clause challenges. This Article argues that courts and commentators should make such a distinction. It claims that local regulations that burden or benefit religious belief, conduct, or exercise have different institutional effects than do similar state or national regulations and that these differential effects should be taken into account when determining the contours of the Establishment and Free Exercise Clauses. More specifically, this Article contends that local government - and more generally the decentralization of power - is a robust structural component of religious liberty. The Article questions the conventional wisdom, usually derived from Madison's Federalist 10, that small-scale polities are likely to be hostile to the rights of religious minorities and therefore particularly in need of central oversight. It asserts, instead, that the chief threat to religious liberty is the exercise of centralized power generally, either to benefit religion as a class or to burden it. The Court's Religion Clause jurisprudence should therefore be more skeptical of federal statutes and regulations that touch on religion than similar local statutes and regulations. On this argument, local governments are appropriate sites - not the only sites, certainly, but central and overlooked sites - for the negotiation of church-state relations.