Public Law and Legal Theory
Public Law and Legal Theory
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AbstractThe political theorist William Galston argues that the liberal political tradition contains two distinct strands of philosophical thought. One emphasizes the principle of autonomy, while the other stresses the principle of diversity. These principles, according to Galston, are in tension with each other and as guiding criterions lead to quite different public policies. Autonomy-centered liberalism seeks to promote autonomy or “individual self-direction”; it reflects a “commitment to sustained rational examination of self, others, and social practices.” As such, autonomy-centered liberals are generally suspicious of religious belief and seek to confine it to the private sphere. Diversity-centered liberalism, on the other hand, seeks to maximize the public space (legally, institutionally, and culturally) in which different individuals and groups can live out their differences, limited only by the demands of liberal social unity. Although Galston does not focus on constitutional law, his explanation of the different conceptions of the liberal political tradition and the place of religion in it raises the question of the extent to which the U.S. Supreme Court’s establishment clause jurisprudence can be explained by the autonomy-diversity dichotomy he has drawn. That is, just as autonomy-centered liberalism seeks to confine religion to the private sphere, so too has much of the Supreme Court’s establishment clause jurisprudence. The question arises then as to whether the Supreme Court’s effort to limit the public role of religion has been driven by an understanding of the liberal political tradition that emphasizes the principle of autonomy, or by something else? Similarly, one wonders if the Supreme Court’s movement over the last two decades toward greater tolerance of religion in public life is rooted in an understanding of the liberal political tradition that stresses the protection of diversity over the promotion of autonomy. The aim of this study is to examine the Supreme Court’s establishment clause jurisprudence against the backdrop of Galston’s writings to see if we can discern in the Court’s treatment of religion any affinities with the two concepts of liberalism Galston describes. To this end, I explore the cases in which the Court has wrestled with the degree to which public funds can be used to support the education of children enrolled in religious schools and the cases in which it has used the establishment clause to remove all official religious practices and symbols from public schooling. I focus on the issue of religion and schooling because this is where the Court’s modern establishment clause jurisprudence began and, because it is the context in which a sizeable majority of establishment clause cases have been decided, it is the milieu in which the Court’s establishment clause jurisprudence has largely been fashioned. As Galston points out, moreover, the issue of education is one in which the conflict between autonomy and diversity is especially pronounced. To anticipate my conclusions, I suggest that there are affinities between autonomy-centered liberalism and the jurisprudence that seeks to secularize the public sphere, on the one hand, and between diversity-centered liberalism and the jurisprudence that seeks not to privatize religion but to ensure only that government does not directly support religion, on the other hand. The similarities in both cases are not so strong or robust, however, as to indicate a straightforward connection between liberal political philosophy and the Court’s establishment clause jurisprudence.