Chapter Nine
CONCLUSION
Toward Secular Convergence
“IN INTERPRETING the provisions of this chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this chapter, and may have regard to comparable foreign case law.” These words, taken from Section 35 of the new South African Constitution, are an invitation to judges in the postapartheid republic to seek outside help in the construction of a constitutional jurisprudence.1 They suggest a model of constitutional development that is outward looking in two related senses: first, in its commitment to certain universal principles of democratic justice, and second, in its endorsement of comparative law as an appropriate source for the adjudication of cases. The text gives new meaning to the term nonoriginalism, which in its familiar understanding connotes a disinclination to be bound by the intentions of those who framed a legal document, but which here stands for the legitimation of foreign legal precedent as a basis for the growth of the law.
This constitutional language is noteworthy only for the explicitness of its acknowledgment of extraterritorial legal sources; the practice of searching beyond sovereign lines for legal guidance in constitutional cases is of course nothing new. Over the years, judiciaries have developed extensive histories of constitutional borrowing, usually without any official invitation to do so. All of these histories involve a mix of both acceptance and rejection of external case law. The drafting of South Africa’s new Constitution deliberately traced the experience of other countries—especially Canada and Germany—and so it is perhaps unsurprising that provi sion was made for subsequent constitutional interpretation to seek guidance from these and other familiar sources of inspiration. While the pressure for indigenous legal development will always be present, its impact may be softened where the animating principles behind the emergence of a constitutional tradition are essentially emulative in nature.
The words of Section 35 also mark the globalization of liberal democratic institutions. It makes sense to view a system’s openness to outside influence in relation to broader political trends—in this case the ascendance of liberal ideals (political and economic)—such that the trans-plantation of constitutional ideas and practices from one place to another projects a certain inevitability, much like what has occurred in recent years with the rapid adoption of market institutions by countries previously unfamiliar with the ways of capitalism.2
Unlike the South African case, the high courts in India and Israel have not been solicited by authoritative constitutional language to employ foreign case law in their legal rulings. However, both courts have, from their inception, welcomed precedents imported from abroad, particularly from the United States. From these precedents judges have sought guidance and legitimacy. But just as the American constitutional model has been only partially followed in India and Israel, American judicial decisions too have exerted a distinctly mixed pattern of influence over legal outcomes in these places. Different constitutional domains vary in degrees of judicial borrowing, a reflection of similarities and disparities in political circumstances surrounding particular issues. Certainly in the case of religion, the very different (yet occasionally overlapping) secular political contexts prevailing in the three countries have played a role in the acceptance and rejection of foreign precedents and legal perspectives as applicable sources for constitutional adjudication.
In the American Supreme Court, which historically has only rarely availed itself of comparative materials, debates have arisen recently over the wisdom and appropriateness of utilizing such sources. On one end of the Court, Justices Breyer and Souter have argued that the experience of other countries can provide valuable lessons for American judges, whereas on the other end, Justices Scalia and Rehnquist have voiced greater skepticism over the benefits of cross-national constitutional exploration. For example, in an important federalism case in 1997, Justice Scalia’s response to Justice Breyer’s suggestion that the Court follow the experience of other federal systems in assessing arrangements for the ad-ministration of national law left little doubt as to where he stood in these matters. “[S]uch comparative analysis [is] inappropriate to the task of interpreting a constitution, though it was of course relevant to the task of writing one.”3 For Scalia, “[O]ur federalism is not Europe’s,” an observation that presumably holds for other constitutional issues as well, including Church/State relations. Thus the sentiment expressed by the authors of a recent study of these relations in five countries, to the effect that “a comparative analysis of how other western pluralistic democracies resolve church-state tensions might shed light on this enduring issue in American politics,”4 would doubtless strike Scalia as an unpromising constitutional avenue to pursue.
Indeed, one of the conclusions of that study is that with respect to free exercise rights, Germany and the Netherlands have a more “appropriate understanding of religious liberty” than does the United States.5 It is “[a] more robust understanding of religious freedom [that] requires the state to take positive measures aimed at protecting and promoting the religious expression of groups or communities, since people live out their religious life within faith communities and associations.”6 Not surprisingly, the constitutional case that is singled out by the authors as particularly revealing of the misplaced emphasis in American First Amendment jurisprudence on faith as a private matter of individual conscience is Employment Division v Smith. That was the landmark case, decided in 1990, that abandoned the compelling state interest test for examining free exercise claims in challenges to laws of general applicability. Its author: Justice Antonin Scalia.
In this concluding chapter, I consider Scalia’s opinion in this controversial case as a way of bringing together some of the broader themes of the book. Although the main focus throughout has been on the Indian experience, the comparative framework within which I have situated some of the threats and challenges to the secular principles of Indian constitutionalism requires that we take seriously the possibilities of critical engagement across political and cultural lines. In chapter 2 I suggested that models of secular constitutional development should not be viewed as rigidly deterministic, and while sociopolitical factors shaped the constitutional cultures within which issues such as the relationship of religion and the State get resolved, these cultures are open to adaptive possibilities that incorporate solutions which are, in whole or in part, identified with alternative models. It was suggested too that the internal tensions and contradictions within each of the context-based secular constitutions have the potential to produce significant convergence in the three nations’ constitutional experiences. For example, a more consciously applied ameliorative perspective might result in American judges displaying greater solicitude for the plight of minority religions confronted by legal sanctions imposed by the legislative acts of an insensitive majority. Similarly, an Indian Supreme Court’s reflexive inclination to accommodate the particular needs of different religious groups might be tempered by greater consideration for the assimilative needs of a radically diverse society. To revisit an earlier point, just as shaping a national identity is always, to some extent, a work in progress, so too is the place of religion within the constitutional order. Moreover, as MichaelWalzer reminded us, the progression of this story sometimes involves figuring out which arrangements there can, with suitable modifications, be made useful here.7 This is especially the case as the embrace of liberal democratic institutions assumes an increasingly international appearance, with the opportunities for cross-national borrowing, even when not formally prescribed in the manner of South Africa, increasing accordingly.
RECONSIDERING SMITH
Aside from the labeling error that resulted from a famous navigational miscalculation by Christopher Columbus, there is no obvious connection between the Indians of Oregon and the Indians of the subcontinent. Nevertheless, I want to argue that the adjudication of the dispute between two members of the Native American Church and the state of Oregon could have benefited from a familiarity with secular constitutional developments in India. Such familiarity is not necessary for a better resolution of the issues at hand, but it can help us to appreciate what a more satisfactory result would look like.
Employment Division, Oregon Department of Human Resources v Smith is arguably the most controversial free exercise decision ever handed down by the United States Supreme Court. “In effect,” said Richard John Neuhaus, “the free exercise guarantee of the Religion Clause of the First Amendment has been declared null and void.”8 Neuhaus, normally a fervent supporter of the author of Smith’s majority opinion, went on to align himself with another commentator’s view that “Antonin Scalia and Smith on religious freedom may have earned a place in the Court’s history alongside Roger Taney and Dred Scott on slavery.”9 Such heated expressions of outrage were not confined to the spiritual camp; thus the decision created an unusual oppositional coalition consisting of traditional civil libertarians and religious conservatives. The culmination of the political efforts of this strange alliance was the near-unanimous pas-sage of the Religious Freedom Restoration Act, which sought to overturn the core of Smith. The Act’s subsequent invalidation by the Supreme Court had more to do with a defense of the Court’s institutional prerogatives than it did with a reaffirmation of the Smith holding.10
The case that generated all this controversy stemmed from the firing of two Native American Church members from their jobs in a private drug rehabilitation organization because they had ingested peyote during a religious ceremony. They subsequently were found ineligible for unemployment compensation, a denial that was then challenged as a violation of free exercise rights under the First Amendment. The consumption of peyote was a crime under Oregon law, which made no exception for the sacramental use of the drug. The right of the state to outlaw drug use was not at issue, only its failure to make an exception for a religiously based violation of the law. In the end, the Supreme Court held that an exemption was not mandated by the First Amendment, and that laws of general applicability that happened to place substantial burdens on religion were not presumptively unconstitutional. According to the Court, no longer would it be necessary in such cases for the State to demonstrate a compel-ling interest in the enforcement of these laws.11
As Stephen Macedo has pointed out, “Judgments about religiously based exceptions are likely to be highly contextualized matters.”12 This can be understood in various ways, but in reconsidering Smith , emphasiz-ing context leads us back to our models of secular constitutional design.Seen from this perspective, Justice Scalia’s opinion is notably expressive of the dominant assimilative strand in the American secular context. This is signaled quite early in his opinion when he invoked the authority of Reynolds v United States, the notorious Mormon polygamy case from the nineteenth century. Just as the Court in that case rejected the claim that the application of criminal laws against polygamy required a constitutional exemption for those whose religion commanded the practice, so too, Scalia insisted, must the Court in Smith repudiate the same claim as applied to the illegal use of drugs for religious purposes. Quoting from Reynolds, he wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”13
As I argued in chapter 3, this subordination of spiritual to temporal authority need not be viewed as hostility toward religion. Though perhaps less clear in the polygamy case, where specific animus toward Mormons was evident in the enforcement of the criminal laws, the broader view that finds in the uniform application of the law both a vindication of the regimedefining principle of natural equality and a safeguard against the threat of religious persecution demands to be taken seriously. The most thoughtful critic of this basically Lockean view, Michael McConnell, was also the most influential scholarly opponent of the Smith ruling. His critique of Justice Scalia’s opinion went to the core of what was at stake in the constitutional debate. “The ideal of free exercise of religion [in contrast with the ideal of racial nondiscrimination] is that people of different religious convictions are different and that those differences are precious and must not be disturbed. The ideal of racial justice is assimilationist and integrationist. The ideal of free exercise is counter-assimilationist; it strives to allow individuals of different religious faiths to maintain their differences in the face of powerful pressures to conform.”14 From this perspective, Justice Scalia’s refusal to provide constitutional redress for the prosecution of Smith’s religiously inspired legal transgression in effect represented a capitulation to assimilationist pressure from secular forces within society.
Given McConnell’s conviction that the existence of the free exercise right establishes the priority of divine authority over the democratically expressed will of the people, his critique of Scalia for having undermined the “counter-assimilationist” ideal of the First Amendment right makes perfect sense. Of course, in defense of Scalia one can say that it is precisely to advance the broader assimilationist objectives of American constitutionalism (which includes protection for religious liberty) that the presumption in favor of religiously based exemptions needs to be negated. Such reasoning would attach a more positive valence to the presence of “powerful pressures to conform,” not because of any (at least conscious) hostility to religious pluralism, but because of the anticipated benefits flowing from the development of a liberal consensus on constitutional essentials. As outlined in chapter 6, the Indian Supreme Court’s effort to employ similar reasoning to uphold the corrupt practices provision of the nation’s main election law was, I suggested, less compelling than other arguments that might have been advanced in its support. These alternative arguments were more consonant with the ameliorative orientation of Indian secularism. Scalia’s opinion, in contrast with the systemically awkward fit of Justice Verma’s judgment, is quite comfortably situated within the main constitutional current of American secularism—but perhaps too much so.15
Indeed, what makes the Smith decision most vulnerable to attack is the apparent rigidity of its adherence to the dictates of assimilative secular-ism. That will no doubt appear as an odd assertion to make in light of the general argument of this book. After all, judicial conformity to the categorical orientation embedded in a particular model of secular constitutionalism would seem to be a good thing. Sometimes, as in the case of the Indian judges in the Bommai case whose ameliorative concerns were clearly understated, a principled consistency with the constitutional polity’s secular aspirations may require some prudent obfuscation. Why, how-ever, would we find fault with an opinion that boldly highlighted the underlying assumptions behind the approach to Church/State relations that best reflects the nation’s circumstances?
One response—which we might call the activist answer—would call into question the desirability of judges simply accepting those circumstances rather than working aggressively to transform them. The example of Justice Barak in Israel comes readily to mind. Whether his efforts to move the Israelis away from the visionary model of secular constitutionalism will succeed remains to be seen, but his transformative agenda could serve to inspire judges in other countries. Justice Scalia, however, is unlikely to be such a judge. To be sure, some of his critics have seen his Smith opinion as a blatant display of judicial activism that set the Court in a very different direction from where it had been headed in its free exercise jurisprudence.16 But within the context of a comparative analysis of secularism, it is a quite conservative decision very much in harmony with the constitutive goals of the larger political system.
In contrast, my response does not dispute the wisdom of attempting to secure a strong measure of congruity between judicial doctrine and the facts on the ground. However, these facts are more complex than the Court suggested, thus raising the question whether a strictly categorical judicial approach to the free exercise issue does not represent an overly formalistic solution to (in this case) the polity’s assimilative secular challenge. More specifically, in denying a presumption of constitutional validity to religiously motivated exemption claims, Justice Scalia instinctively, and correctly, orders spiritual and temporal affairs. As Christopher L. Eisgruber and Lawrence G. Sager have pointed out, “There is a substantial range of religiously motivated conduct—readily observable in contemporary national experience—that quite clearly must yield to conflicting secular laws.”17 Yet in affirming this reasonable principle, Justice Scalia’s application of it to the case at hand also displays insufficient sensitivity to the conditions that foster assimilation into a common culture of political ideas. The extent of constitutional solicitude for religiously based illegal acts should not be determined through recourse to reflexive majoritarianism or misguided respect for the sanctity of spiritually guided motivations.
Looking at the opinion of the Court, we find three arguments bearing on the role of the judiciary in free exercise cases. Only the first was assented to—albeit with some reservations—in the concurring (O’Connor) and dissenting (Blackmun) opinions.
1. Theology: “[C]ourts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.”18 Ascertaining the “centrality” of religious beliefs in evaluating the strength of an exemption claim is not, so the argument goes, legitimately within the judicial ken.19
2.Diversity: “[P]recisely because we value and protect . . . religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.”20 To do otherwise in this cosmopolitan nation is, Justice Scalia insisted, to invite anarchy. (Both Justices O’Connor and Blackmun reacted strongly to the use of the word luxury in reference to a constitutionally protected right.)
3.Democracy: “[L]eaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely en-gaged in; but that unavoidable consequence of democratic government must be preferred to a system in which conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”21 Creating religious-practice exemptions may be desirable, but discerning the appropriate occasions for their provision is not for the courts to determine.
With reference to the facts of the case, these three arguments meant that (1) the sacramental use of peyote may very well be essential to the religious identity of members of the Native American Church, but the Court must studiously avoid reaching that conclusion for itself;22 (2) while the accommodation of diverse religious practices by all faiths is a worthy goal for the polity, the asserted interest of the State in maintaining the integrity of its drug laws must not be second-guessed by the Court; (3) if there is to be a specific accommodation, that is, an exception to the enforcement of the drug law for sacramental use of peyote, it must occur as it has in other states, through appeal to the will of the majority as expressed in the state legislature.
The judicial role embodied in these three arguments and in their application in the Oregon case is clearly one that emphasizes a passive approach to free exercise adjudication. O’Connor criticizes this emphasis: “[T]he sounder approach—the approach more consistent with our role as judges to decide each case on its individual merits—is to . . . determine whether the burden on the specific plaintiffs before us is constitutionally significant and whether the particular criminal interest asserted by the State before us is compelling.”23 Her sharply crafted disagreement with her colleague’s democratic argument (point 3) was attached to an increasingly familiar account of American history and political theory, in which “the harsh impact [of] majoritarian rule . . . on unpopular or emerging religious groups” was too prominent to be ignored.24 What could be ignored was the centrality of particular beliefs and practices to a specific faith, for in this respect she agreed with Justice Scalia (and, as I noted in chapter 3, scholars such as Laurence Tribe and Richard Epstein) that matters of theological importance and disputation were not appropriate subjects for judicial resolution. But this too was a position shaped largely by the familiar, namely, her experience as an American public official, in which one can afford the luxury—in this case, of detachment from interpretive matters of sectarian belief—not so easily avoided by counterparts in other societies, especially India.
To be sure, an acquaintance with the Indian legal scene could easily strengthen the resolve of American judges to stay clear of theological is-sues and contestation. Thus the missteps of Indian judges in the Shah Bano and Ayodhya Reference cases serve as cautionary reminders of the problems that can follow from judicial invocation of an “essentials of religion” test. But there are also instances where, as in the polygamy cases, employing such a test possesses a plausible underlying logic, such that judges in religion cases might be well advised to exercise caution before removing it entirely from the quiver of their judicial arsenal.25 As we have seen, in those instances where judges can be expected to consider the ameliorative mission of the secular constitution, curtailing religious practices is, in effect, the price to be paid for upholding laws directed toward advancing the social welfare. What may mitigate the perception of this infringement as a purely heavy-handed utilitarian intervention (and thus a failure, as Ronald Dworkin might put it, to take rights seriously) is the often accompanying assessment of the centrality, or lack thereof, of the restricted practice to the religion of the practitioner.26 So if polygamy is deemed not critical to what it means to be a Hindu, then a validation by the Court of the State’s restriction of the act arguably carries a lesser threat to the Court’s legitimacy than if no differentiation were made in relation to the claims advanced on behalf of controversial religious beliefs and practices. Of course, the Court must always weigh the countervailing possibility that its power and prestige will be diminished when its author-ity to make such determinations is questioned. But given the Indian Constitution’s unambiguous directive to the courts to extend a presumption of constitutionality to welfare-oriented governmental acts that limit religious freedom, judges could feel emboldened, if not supremely confident, of emerging unscathed from their occasional forays into the thicket of theological debate. Add to this the unstructured quality of ecclesiastical authority in Indian society, with its attendant cacophony of authoritative religious voices, and the expenditure of political capital from such adventures begins to look tolerable.
More tolerable, surely, than in the United States, where religion is not the great obstacle to social reform that it is in India, but where its more hierarchical organization does present a formidable obstacle to judicial theologizing. Nevertheless, the idea that the Court can responsibly adjudicate free-exercise exemption cases without ever having to consider the centrality question strains credulity.27 The Indian experience shows why rulings based on such considerations are inherent in the process of balancing public and private interests, and also why the potential for overreaching should lead to a restrained view of the practice.28 But that experience must be adapted to the contextually specific requirements of secularismin American constitutionalism. If in India judicial indifference to the substance of religious belief serves in some measure to legitimate an unjust status quo, in the United States it can undermine secularism’s assimilative aspirations, which include an important ameliorative dimension. How so?
One of the Supreme Court’s leading critics of Smith, Justice Souter, has based his critique of the ruling on a distinction between “formal neutrality” and “substantive neutrality.”29 It was, he claimed, an “unremarkable point,” presumably because it added little to what had become a familiar theme for the many detractors of the decision: Free exercise embodied a substantive dimension that “require[d] government to accommodate religious differences by exempting religious practices from formally neutral laws.”30 The constitutional problem with the failure to provide an exemption lay in the fact that the enforcement of a law “neutral on its face” nevertheless unduly burdened a believer’s free exercise right, thereby producing an undeniable substantive deprivation. Conceptually, as Eisgruber and Sager have pointed out with respect to all the opinions in Smith (as well as to Congress and the president’s Religious Freedom Restoration Act [RFRA] response), the deprivation—and also the reasons advanced for tolerating it—was considered within a “paradigm of privilege.” 31 By this they meant that “[I]t is a matter of constitutional regret whenever government prevents or discourages persons from honoring their religious commitments,” which is why, in order to prevent this from happening, “the principle of unimpaired flourishing” must be upheld.32 That was the minority’s position (and later, Justice Souter’s), but the majority too conceived the salient issue to be the challenge of this principle to the rule of law.
Both sides, however, glossed over the more salient issue of equality.Souter’s distinction would have been a little more remarkable had he used it to make a somewhat different point, that the main defect in the constitutional insistence on formal neutrality is that it leads to a denial of substantive equality for those whose affiliation with a minority religion renders them particularly vulnerable to the inattention or prejudice of the religious mainstream. Kathleen Sullivan has written that “[T]he big flaw in Smith [is that] it entrenches patterns of de facto discrimination against minority religions.”33 Justice O’Connor’s opinion appeared to recognize this when she attacked the majority for, in effect, making “the price of an equal place in the civil community” contingent on abandoning the dictates of one’s religion.34 But the thrust of her argument was to establish that only governmental interests “of the highest order” can override the individual interest in living one’s life in accordance with one’s religious beliefs. It was an argument that, as Macedo has observed in connection with the RFRA response, “encourage[s] religious objections to generally applicable laws of all sorts, encourage[s] people to constantly regard the law from the point of view of their religious beliefs, and impair[s] the Constitution’s transformative function.”35
Indeed, this constitutional function is the essence of assimilative secularism. In pondering the complexities of the exemption problem, we should direct more attention to the connection between the norm of constitutional equality and the assimilative aspiration that is demanded by the best interpretation of the religion clauses. “Because a liberal public morality is always (more or less) in a state of coming-intobeing, we should accommodate dissenters when doing so helps draw them into the public moral order; that is, when it helps transform a modus vivendi into a deeper set of shared commitments. To the extent that we can make mainstream public institutions more accessible to cultural and religious outsiders, we may help integrate them into our shared institutions.”36 We should, in other words, emphasize the ameliorative aspects of member-ship in the civic community of a diverse democracy, thereby accentuating the benefits of having key minorities fully embrace the tenets that give distinctive meaning to the polity. Improving the status of religious minorities relative to the cultural mainstream should enhance the possibilities for a genuinely integrated political community in which the reality of citizenship is experienced equally, substantively as well as formally.37
In India, the ameliorative goal has developed within a social context in which religion stands as a principal obstacle in the path of constitutionally mandated societal reform. Accordingly, a prominent feature of Church/ State jurisprudence has been to frequently curtail free exercise rights in the name of social justice. In the United States, ameliorative considerations do not weigh nearly so heavily in constitutional cases involving religion, but to the extent that they do at all, they pull in the opposite direction, toward greater accommodation of free exercise claims. In some cases they support the transformative agenda of American citizenship by contributing to the removal of barriers to the outsider’s identification with the ideas and ideals of the liberal political culture. The Fourteenth Amendment, which protects citizenship rights, is, in its aims and in its relationship to the conditions prevalent at the time of its drafting, the most ameliorative of all American constitutional provisions. In Jane Rutherford’s apt formulation, “Fourteenth Amendment equality principles and First Amendment principles of religion are mutually reinforcing.”38 When applied to the particulars in Smith, the reinforced norm of substantive equality requires “equal opportunity to engage in sacramental practices.”39
In contrast, the third point in Justice Scalia’s opinion for the Court recognizes only the principle of formal equality, requiring uniform treat-ment of all offenders who violate the prohibition against peyote use. The majority is to be treated identically with the members of the Native American Church; both, in essence, have a right to neutral and impartial enforcement of the State’s drug laws. Strictly speaking, equal protection is guaranteed. However, the Indian experience reminds us to appreciate the looming difficulty in this arrangement. Some of the most serious challenges to secularism in India have involved instances where, rightly or wrongly, the jurisprudential invocation of formal equality has called into question people’s good faith or good sense. The revival of Hindu national-ism is an extraordinarily complex phenomenon, but instrumental to its success to date has been the strategic commitment of its leaders and theoreticians to the precepts of majoritarian democracy. For some, this commitment also represents a principled effort to fulfill the constitutional promise of liberal equality; for many, however, it has provided political cover to pursue an illiberal agenda of Hindu religious and cultural domination. In the various constitutional confrontations considered in this study—over the adoption of a uniform civil code, over the dismissal of elected governments in three Indian states, over the interpretation and enforcement of the nation’s main electoral law—we have seen how precarious the condition of religious minorities (especially Muslims) is when their interests are subsumed in a political discourse of formal equality.Judges who embrace this discourse are not necessarily dishonorable or intolerant; in most instances they are quite the opposite. But their decisions have often provided aid and comfort to those seeking assimilation of minority groups into the culture of the dominant majority.
Of course, in the United States, judges need not worry that they will become pawns in an elaborate campaign to redefine the essentials of national identity. Although the “tyranny of the majority” was a phrase applied originally to the American scene, it resonates more powerfully in connection with contemporary India. Still, for all the differences, the Indian example includes important lessons for American judges, perhaps most significant, that there is a fine line separating political from social assimilation. “Leaving accommodation to the political process” may do more than “place at a relative disadvantage those religious practices that are not widely engaged in”; it may have the more profound, if inadvertent, effect of submerging the way of life of a thickly constituted religious minority under the cultural sway of mainstream theology. Moreover, with regard to certain groups, notably Native Americans, the assimilative designs of the majority have been less a theoretical possibility than a historic reality. At the federal level this history has been recognized in the provisions of the American Indian Religious Freedom Act, which says: “[I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.”40 The anomalous constitutional status of Native Americans (as the only minority whose formal rulemaking authority to regulate many of their own affairs is specifically recognized in law) should send a clear message to judges of the unusual sensitivity required of them in adjudicating the free-exercise claims of tribal members. As Justice Blackmun wrote in his dissent in Smith, “[T]his Court must scrupulously apply its free exercise analysis to the religious claims of Native Americans, however unorthodox they may be.”41 In this vein, it should have focused on Congress’s finding that certain substances, such as peyote, “have religious significance because they are sacred, they have power, they heal, they are necessary to the exercise of the rites of the religion, they are necessary to the cultural integrity of the tribe, and, therefore, religious survival.”42
Assuming, then, that the Court’s position on the subject of exemptions was at least in part intended to advance the assimilationist goals of the secular constitution, in the end its intransigence served to undermine this objective by shifting the focus from political assimilation to social assimilation. Al Smith, the respondent in the constitutional case, had, “[f]rom an early age . . . fiercely struggled against attempts to assimilate him into white society and fought to live his life the way he wanted.”43 Had the Court introduced ameliorative considerations into the constitutional equation, the line that separates the two kinds of assimilation might have been better maintained. Operationally this would have entailed considering the special circumstances attending the claim asserted by Smith—the centrality of the sacramental use of peyote to the practice of his religion, and the historic vulnerability of his faith (and tribal) community to persecution by dominant forces within the wider culture.44 Such solicitude should not be extended indiscriminately (in the manner of RFRA), but should be calibrated carefully to reflect the facts of each case. In doctrinal terms, the Court might therefore do well to follow Rodney Smolla’s advice by adopting an intermediate scrutiny test that balances the “government’s interest in the uniform adherence to laws of general applicability and the interest of individuals in receiving modest accommodation for the free exercise of religious beliefs.”45
But what precisely is the constitutional basis for the accommodation?Here the Court should heed Eisgruber and Sager’s observation that “What transforms religious accommodation from a mere policy concern to a constitutional issue is the vulnerability of religion to prejudice and persecution.”46 In their analysis, protection against discrimination, rather than privilege against all noncompelling governmental interests, should govern judicial determinations about exemptions. “[T]he latitude mainstream religions enjoy to consummate their sacraments argues for a failure of equal regard.”47 Thus a merely formal application of the equality principle deflects attention from the impact of a law on the free exercise of religion; insisting only on evidence of discriminatory intent provides insufficient safeguard against majoritarian indifference.
The argument in this form emphasizes victimization as the predicate for judicial action.48 By factoring in calculations rooted in related concerns about assimilation and amelioration, the claim, while persuasive, is augmented by an affirmative, less defensive component. We might recall in this regard Justice Reddy’s remark in Bommai, the case of the three elected Indian state governments that were (at least officially) dismissed for a “failure of constitutional machinery,” specifically their alleged violations of secular principles. “Secularism is . . . more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.” For a majority of the justices this meant that the State was to be encouraged to act in furtherance of the basic features of the Constitu tion, not simply to refrain from acting in ways that threaten fundamental rights. The principle of equal treatment needed to be loosened from its secure moorings in procedural justice and situated more proactively within the context of the Constitution’s broader substantive objectives. In the Indian context, this meant an injunction to advance the ideal of a welfare State by conjoining secularism and egalitarianism. Under the rubric of the term positive secularism, government policies were held acceptable if their purpose was to eradicate social injustices attributable to religious practices, even if these policies targeted specific communities. In contrast, as we saw in chapter 4, the more negative secularism of American First Amendment jurisprudence produces (at least in theory) a much less active role for government, coupled with a strongly entrenched skepticism for the judicial targeting of religious communities in exemption cases.49
One would think, however, that it might be possible to infuse a greater positive element into American efforts, tempered to avoid unlimited flourishing that, in turn, diminishes the Constitution’s transformative role in facilitating liberal assimilation.Would not such an infusion in fact be in the best interests of American secular constitutionalism? While a principal goal of free exercise jurisprudence is, and ought to be, protection against hostile action endangering vulnerable religious minorities, vital too is the support of public institutions for a civic community that rests solidly upon a broadly shared core of political ideas. If in India ameliorative considerations are a major chord in the harmonizing of religion and social reform, in the United States they can be played to good effect in a minor chord to help orchestrate the coherent integration of religious and political goals. So if the members of the Native American Church are insulated from Oregon’s drug law, that protection also ameliorates their marginal status in society and may therefore, by the example set, strengthen the legitimacy of secular political beliefs that are central to the success of the American political experiment.50 Michael McConnell’s observation that “[T]he ideal of free exercise is counter-assimilationist” may now come to be seen as expressing at best a half-truth about the essence of the secular constitution. We would do well to ponder the implications of the other half.
REINVENTING THE WHEEL
[W]e cannot start de novo, as if India had no history and as if people could change their nature merely by taking thought. Possibilities must be grounded in the nature of the actual. Civilisations must live on the lines of their own experience. Like individuals, even nations cannot borrow experience from others. They may furnish us with light, but our own history provides us with the conditions of action. The only revolutions that endure are those that are rooted in the past.51
—S. Radhakrishnan
If Americans would be wise to introduce an ameliorative perspective into their reflections on Church and State, Indians too would benefit from a similar move, incorporating assimilationist reasoning into assessments of their own secular predicament. When Nehru wrote in The Discovery of India that countries such as his own were not as favorably situated as the United States in being able to solve their minority problems by “mak[ing] everyone conform to a certain type,” he seemed at least open to the possibility that with an improvement in the Indian condition, the effort “to make every citizen 100%” Indian could proceed realistically. Even so, “with a longer and more complicated past,” neither Nehru nor his compathe triots could have been, on the eve of independence, sanguine about the prospects for an American-style solution to the dilemmas of diversity and disunity. But as Nehru also recognized, “Indian history is a . . . continuous adaptation of old ideas to a changing environment, of old patterns to new.”52 The idea of Indian unity is as old as Ashoka; how it will ultimately be attained in the world’s largest democracy is still unclear, but undoubt-edly religion will play a pivotal role.53
This being the case, the key question concerns the kind of assimilationist thinking that will shape the future of Indian secularism. Sunil Khilnani has noted that the “search for an internal principle of unity” has often fixated on the Hindu religion. But the search cannot end there, for the fragmentation evident in the caste system and in the “bewildering plural-ism of Hindu beliefs” is an enduring alternative reality that demands further exploration.54 To serve effectively as a unifying force, Hinduism had to be cleverly adapted to mute its inherent multiplicities, accentuating instead cultural commonalities and shared geography. Proponents of the faith’s political reincarnation, Hindutva, have diligently sought to use the exclusivist ideology of ethnoreligious nationalism to create an Indian identity that automatically confers political and constitutional legitimacy upon people and practices of the country’s religious majority. For those outside the fold, the promise of inclusion has been made contingent upon their assimilation into the unifying Brahminical culture that, in this view, must come to define the Hindu nation that is India. The struggle to establish the political primacy of this Hindu identity often assumes a violent form, as symbolized by Ayodhya, but it also pursues the path of the law, as illustrated most vividly in the Hindutva Cases. In essence, it is a struggle to instantiate a visionary model of Church/State relations, which would resemble in form the Israeli political paradigm, but which in practice could threaten the religious liberty that makes a constitution secular.
The opponents of this cultural assimilationist quest for unity have frequently found themselves defending their occasional support for the claims of minority communities, which exempts them from the offense of “communalism,” the term of disdain they have attached to the followers of Hindutva. Their attempt to recapture the principled high ground is complicated by the fact that, by their actions over the years, they have indeed too often exposed themselves to the charge of hypocrisy, if not “pseudo-secularism.” Moreover, to the extent that their defense of minorities has been genuinely principled and free from crass political calculation, it has not sustained a compelling argument that rivals in rhetorical power the case for Indian unity made by the other side.
This failure is attributable in part to the tentativeness with which the “anticommunalists” have pursued the ameliorative promise of the secular constitution. As we saw in chapter 4, incrementalism in the secular pursuit of social justice makes sense within a complex social setting characterized by a deeply entrenched diversity of groups at various stages of development. The norm of “principled distance” permits a measure of differential treatment of these groups without conceding the Constitution’s basic commitment to secular governance. In accordance with this norm, for example, Muslim polygamy was legally tolerated at the same time that the practice was legislatively proscribed for the majority community. Whatever the shortcomings of the Hindu Code Bill as an attempt to reform religiously sanctioned regressive behavior, symbolically at least it evinced a concern for the social conditions of Hindus, notably ignoring the same conditions in the minority communities. Such neglect can be benignly interpreted as a pragmatic, well-intentioned display of sensitivity to the religious beliefs of vulnerable minorities, but it can very easily lapse into a patronizing tolerance that cumulatively risks obscuring the logic of ameliorative secularism. And in the process it most assuredly provides potent ammunition for polemicists of cultural assimilation.
Countering them presents a formidable challenge. In particular, the burden of undoing deeply rooted social inequities is an inherently divisive undertaking, and so the underlying premise of ameliorative secularism—reducing inequality—does little (or so it would seem) to make the elusive goal of Indian unity any less elusive. On the other hand, a fascinating irony of the caste system and its historic persistence and pervasiveness in India is that it has provided Indians with a profoundly significant shared experience that, perversely, may in the end help to develop a positive sense of national identity.55 Overcoming the system’s inequities potentially serves the corollary interest in national integration. As Radhakrishnan put it, “To develop a degree of organic wholeness and a sense of common obligation, the caste spirit must go.”56 Thus the constitutional project of social reconstruction, tied in large part to the commitment to secular governance, embodies a dual potential for advancing or retarding the longsought objective of political consolidation.
The delicacy these matters demand defies doctrinaire (or even confident) resolution. As we have seen, the Hindu right has had some success exploiting the time-honored strategy of displacement of conflict, even if subordinating intracommunal fragmentation to the broad cultural appeal of Hindutva should turn out finally not to be a formula for enduring political prosperity.57 The strategy has been particularly adept at capitalizing on the missteps of a political opposition that has, in its policy toward minorities, sometimes been insensitive to the appearance of pandering. The competing case for positive secularism must be made in a way that preserves the national focus on social reform while carefully balancing the fundamental interests in diversity and equal treatment, a balancing traceable to constitutional commitments to the maintenance and preservation of distinct cultures (e.g., Articles 29 and 30) and to the eventual adoption of uniform laws requiring compliance irrespective of religious affiliation (Article 44).58 Cultural assimilation can only be effectively countered by political assimilation, specifically by emphasizing positive secularism as a central component of a shared political identity that respects India’s various group identities and the State’s ameliorative project.
We come full circle to the great symbol of Indian secularism—Ashoka’s Wheel. As invoked at the Constituent Assembly by Nehru, Radhakrishnan, and others, it was meant to convey three related ideas about religion and politics in India: (1) that the spiritual and temporal domains were indissolubly bound together; (2) that the State had an obligation to remain impartial in its relations with the nation’s various faiths; and (3) that the pursuit of a just social order was central to the vision of constitutional secularism. These notions are sometimes in tension with one another; for example, addressing egalitarian goals requires a modicum of differential treatment toward distinct communities. To keep the wheel running smoothly means adopting measures to reduce the level of friction from within, aligning the various components of the system so that they perform to maximum efficiency.
Indeed it could mean borrowing from the assimilative model to complement India’s ameliorative orientation, mirroring what we imagined in our discussion of Smith and religiously based exemptions in the United States.Neither exclusive transformation nor exclusive conservation fulfills the promise of the secular liberal constitution; that is, a polity with transformative aspirations, whether assimilative or ameliorative, should strike a careful balance between communal sensibilities and secular objectives.Demanding reasonable respect for groups without endorsing unimpaired flourishing is a sensible general goal for both polities, although drawing specific lines in each instance will necessarily vary according to local requirements. We have seen that the American constitutional scheme, in recognizing the appeal and potential of religion in defining individual identity, guards against the threat this poses to the common political identity so critical to the achievement of constitutional aspirations. Or more succinctly, “The voting booth is the temple of American institutions.”59 Yet we have also seen that blindly worshipping at the altar of democracy can undermine pluralist interests vital to liberal constitutional values. Examples of these costs are being tallied in the unfolding of political developments in India, where provisionally, at least, the effects of majoritarian democracy have been notably and troublingly mixed in their impact on these values. Indeed, just how intricately perplexing these issues can become is evident in the counterintuitive words of the Hindu right’s leading theoretician: “I am against a religious State; I am for the American way [in Church/State relations].”60
So the question, then, comes down to this: What advantage can Indians committed to the secular vision of their Constitution derive from the American approach that does not play into the hands of other Indians holding very different views? How can the benefits of political assimilation accrue to the first group without advancing the agenda of cultural assimilation espoused by the second?
The advantage lies in a deeply rifted polity’s potential gain from the transformative possibilities of liberal political ideas. A society in which rigid social stratification dominates the legacy of the dominant religion would be wise to consider the workings of a system in which sectarian piety is constitutionally subordinated to the self-evident truth of human equality. To be sure, the thickness and pervasiveness of religious belief and practice in India mitigates against embracing this benign subordination as the organizing structure of its secular governance, but surely the moral resources of liberal equality would encourage a principled solidarity that is at once consistent with the polity’s ameliorative ambitions and respectful of its pluralist heritage. In contrast with the United States, India’s constitutional context requires greater solicitude for the claims of group autonomy; however, with the advance of secularly inspired progress in social reform, latent pressures for uniform treatment might be expected in time to mature into more enforceable legal obligations.
Understanding the demand for uniformity in relational or contingent terms, as connected to the progressive realization of ameliorative goals, should also help to parry the “liberal” challenge of the cultural assimilationists.Shourie’s support for the “American way” is a classic example of jurisprudential borrowing without adequate regard for the complications associated with constitutional context. Conforming to a more exacting standard of Church/State separation clears a path to the high ground of principled jurisprudence, a sheltered perch from which charges of pseudo-secularism can be hurled with impunity upon the temporizing minions of Nehru’s and Ambedkar’s successors. In addition, a more separationist stance entails, in its most theoretically refined articulation, a commitment by the State to take minimal (if it were possible, no) cognizance of religion in its officially sponsored acts. Such formal indifference to religion conveniently impedes social reconstruction, rendering suspect the effort to single out regressive religious practices for special statutory and administrative attention. Thus, in line with the perceived procedural requirements of American-style First Amendment jurisprudence, caste and gender issues having a specific connection to particular faiths should be removed from the public agenda. Still permissible in this view would be religion-blind reform in accordance with a “one size fits all” arrangement. But under this formula, general standards of right conduct would undoubtedly be derived from politically dominant views in the religion of the majority, and so in the end this policy too would accommodate distinct ideological purposes on the Hindu right.
Of course, to deflect any intimation that the enthronement of a “religious State” is the specter behind publicly declared statements of principle, these standards have and will require artful casting in cultural terms, the alleged purpose of which is to preserve the unique essentials of a treasured way of life. Those wishing to thwart the culturally hegemonic designs that lie behind the liberal facade will need to expose this deployment of liberal doctrine as only a veneer, proving that a purely procedural approach abstracted from substantial social amelioration is seriously deficient as a secular solution in India. Critical to this demonstration is an honest and accurate explanation of the substantive commitment embodied in “the American way” (or other such formulations), one that makes clear that the essence of liberalism’s political truth resides in the fact of our common humanity, and only derivatively from the forms through which constitutional democracy is processed.
But a narrowly rhetorical defense of natural equality will only go so far. It must accompany actions that promise realistic amelioration of social conditions rooted in a religiously sanctioned feudal past. Constitutional accommodation of such actions is necessary not only to achieve specific reforms but also to provide a legitimating backdrop for ideas that lie at the core of political assimilation and its unifying project. Radhakrishnan, the philosopher-statesman whose eloquent evocation of an ancient symbol to represent contemporary India’s hopes for a more just society gave clarity to the secular intentions of many of the Constitution’s framers, insisted that “[Our] new emphasis on the dignity and freedom of man demands a reshaping of the social order.”61 But policies alone, he suggested, were not sufficient. “Transform[ing] the mind of the people”is integral to the removal of “obstacles to social justice.”62 Indeed, securing “[t]he inviolable sanctity of the human soul, the freedom of the human spirit,” was so critical as to be considered “the sole justification for the State.”63 This ennobling thought, which is very familiar to the tradition ofWestern political philosophy, is of course not unique to liber alism or to the United States, even while its central role in American secular constitutional theory has distinguished the jurisprudence of Church/State relations. Much as Indians should endeavor to “live on the lines of their own experience,” and therefore resist making this or any other jurisprudence a focus of reflexive emulation, one can hope that it will at least “furnish [them] with light,” as they follow the Wheel of Law to its appointed destination.
1 These words are taken from South Africa’s interim Constitution. They have been replaced in the final Constitution by Section 39, which, in stating that a court “must consider international law,” (39, 1,b) sharpens the mandate to consider public law.
2 Here the Israeli and Indian examples may be instructive, for a distinctive feature of those polities is that their complex political dynamics point in two quite different directions: one toward the alignment of the political order with the constitutional commitments of Western liberal democracies, the other toward the restoration and development of a national homeland for a particular people (Israel), or the achievement of far-reaching social reconstruction in the face of entrenched religious opposition (India).
3 Printz at 921. The case involved the “commandeering” provisions of the Brady Law’s requirement for performing background checks on prospective gun buyers. Justices Souter and Rehnquist engaged in a similar debate in Raines v Byrd, the line-item veto case.
4 Monsma and Soper 1997, ix.
5 Ibid., 202.
6 Ibid., 203.
7 Walzer 1997, 5.
8 Neuhaus 1990, 64.
9 Ibid., 68.
10 The three dissenters in City of Boerne v Flores affirmed their profound misgivings with Smith , but only Justice Stevens, in a concurring opinion, defended the original judgment.Justice Kennedy’s opinion for the Court was based on a reading of the scope of Congress’s enforcement power under Section 5 of the Fourteenth Amendment.
11 The intensity of the negative reaction to this doctrinal shift was heightened by the fact that neither of the parties to the case had requested of the Court that it revise its constitutional test. As Justice O’Connor pointedly remarked in Boerne v Flores, “In Smith , five members of this Court—without briefing or argument on the issue—interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct man-dated by an individual’s religious beliefs, so long as the prohibition is generally applicable.”Boerne v Flores at 546. This sentiment was echoed in the dissents of Justices Souter and Breyer.
12 Macedo 2000, 211.
13 Quoted in Smith at 879.
14 McConnell 1990a, 1139.
15 In the argument that follows I do not address myself to other weaknesses in the Court’s opinion. McConnell and others have criticized Justice Scalia’s ruling for the many alleged inadequacies in its use of text, history, and precedent. I share some of these misgivings, particularly in regard to the opinion’s somewhat tortured application of precedents, but I have nothing to add to them here. It is worth noting that agreement in the outcome of the case did not necessarily connote admiration for Scalia’s opinion. Consider, for example, William P. Marshall’s rejoinder to McConnell: “The Smith opinion itself . . . cannot be readily defended. The decision, as written, is neither persuasive nor well-crafted. It exhibits only a shallow understanding of free exercise jurisprudence and its use of precedent borders on fiction. The opinion is also a paradigmatic example of judicial overreaching.” Marshall 1991, 308–9.
16 Exactly where it had been headed is a matter of debate. Christopher L. Eisgruber and Lawrence G. Sager have argued that “[T]he pre-Smith accommodation jurisprudence as a whole was laced with confusion and contradiction.” Eisgruber and Sager 1994a, 1307. For example, they claim that the Congress that passed the Religious Freedom Restoration Act was mistaken in its view of the prevailing doctrine before Smith. Thus, they maintain, the statute’s “compelling state interest” language erroneously made it appear that that standard had in fact been applied consistently in free exercise exemption cases, whereas the reality was that the occasions where it had been invoked (basically in the unemployment compensation cases beginning with Sherbert v Verner) were the exception rather than the rule. If indeed their observation is a fair statement of the prior history, then it stands as a criticism of the many scholars and judges who have made similar assumptions regarding the earlier case law.
17 Ibid., 1260.
18 Smith at 887.
19 As Harry F. Tepker Jr. has pointed out, the critique of a judicial test that weighs the centrality of a religious practice or doctrine as part of its application echoes objections that have often been raised against judicial balancing as a procedure for determining constitutional rights. Tepker 1991, 40. It is not clear how important these general jurisprudential concerns were in Smith , although it is worth noting that Justice O’Connor, never one to shy away from judicial balancing, also distanced herself from a “centrality” analysis. Similarly, Douglas Laycock, a leading student of the religion clauses, wrote that “If the Court is serious about getting federal judges out of the business of balancing, then a wholesale revolution in constitutional law is imminent.” Laycock 1990, 31. While very critical of a “centrality”test, Laycock insists that balancing is essential for determining, as the Court must, the extent of a regulation’s burden on religious exercise.
20 Ibid. at 888.
21 Ibid. at 890.
22 As explained in Justice Blackmun’s minority opinion, members of the Native American Church believe that the peyote plant embodies their deity, and eating it is an essential ritual of their religion. Blackmun pointed this out after agreeing with Justice O’Connor (and Jus-tice Scalia) that courts should refrain from pursuing questions about the “centrality” of practices to a religion. But he quickly added, “[I] do not think this means that the courts must turn a blind eye to the severe impact of a State’s restrictions on the adherents of a minority religion.” Ibid. at 919.
23 Ibid. at 899.
24 See, for example, Smith 1997.
25 I refer here to the Indian polygamy cases, but one can profitably speculate on whether the American polygamy cases would not have been better received had the judges deciding them opined on the centrality of multiple marriages to the Mormon religion. One possibility is that such an approach might have lessened the prejudicial tone of the rulings; the Court in Reynolds and Beason can easily be read as saying: Polygamy may be of the essence of Mormonism, but since it is such a barbarous, un-Christian practice, it must be banished from our national experience. The fact that the religion has thrived subsequent to polyga my’s legal demise testifies either to the extraordinary adaptive power of the religion or to the fact that it was all along only incidental to one’s affiliation with the faith. Indeed, in the 1964 case of People vWoody, the California Supreme Court focused on centrality to distinguish polygamy and peyote. “Polygamy, although a basic tenet in the theology of Mormonism, is not essential to the practice of the religion; peyote, on the other hand, is the sine qua non of defendants’ [Navaho] faith.” To ban the sacramental use of peyote is to tear out “the theological heart of Peyotism.” People v Woody, 820, 818. But the reflection on Mormonism can be questioned. For example, Douglas Laycock reminds us that “The Mormons eventually gave up polygamy, but only after a half a century of sometimes bloody conflict, the legal dissolution of their church, and the seizure of all its property.” Laycock 1991, 29.
26 Dworkin’s position is that if citizens possess a substantial, that is, moral, right, then the government would be unjustified in overriding it, “even if they were persuaded that the majority would be better off if [the right] were curtailed.” Dworkin 1977, 191. But as Dworkin acknowledges, that is not to say the government is never justified in overriding such a right. There are both weak forms of the right and very substantial public interests that may alter how we assess a particular situation. Although Dworkin does not, as far as I know, recommend to judges that they attempt to isolate those practices that are integral to the free exercise of religion right, it seems as if such an effort may be necessary to fully realize the logic of his basic argument about taking rights seriously. Incidentally, Dworkin’s position on the preferred status of religious exemptions bears on the core issue in Smith . “A government that is secular in principle cannot prefer a religious to a non-religious morality as such.There are utilitarian arguments in favor of limiting the exception to religious or universal grounds—an exemption so limited may be less expensive to administer, and may allow easier discrimination between sincere and insincere applicants. But these utilitarian reasons are irrelevant, because they cannot count as grounds for limiting a right.” Ibid., 201.
27 Consider, for example, the problem that occurs when a religion discriminates on the basis of ascriptive criteria such as race, sex, or sexual orientation. Under Section 702 of Title VII of the Civil Rights Act, religions are exempted from the nondiscrimination requirement of the civil rights laws. So there is no presumption that when a church discriminates, say, in employment, it is acting illegally. It is not necessary to enter the debate as to whether this exemption is a good idea, or even whether it is a violation of the Fourteenth Amendment, to appreciate that when courts are asked to rule on the legality of an alleged discriminatory act, they must, in determining if the church qualifies for the exception, reflect on the centrality of discrimination to the beliefs of the implicated religion.
28 Even a restrained view would be too extravagant for some critics of the practice. For example, Ira C. Lupu maintains that “[J]udicial resolution of theological controversy is both beyond judicial competence and out of constitutional bounds.” It “runs the usual and grave risk of bias towardWestern, monotheistic religions, which have a recognized center in worship of a Supreme Being.” Lupu 1989, 959. This criticism must be taken seriously, but there may be a countervailing bias as well. Thus the relative thickness of non-Western religions, such as Hinduism, provides a recognized center in the existence of a way of life for affiliates whose lives are pervasively religious.
29 Church of the Lukumi Babalu Aye 561–2.
30 Ibid. at 562.
31 Eisgruber and Sager 1994a, 1254.
32 Ibid. The principle has been pressed by Douglas Laycock, who was instrumental in the preparation of RFRA. For him, formal neutrality prevents the realization of the substantive entitlement to exemptions required by the Free Exercise Clause. Laycock 1991, 16. “Exemptions should be routine and not exceptional.” Ibid., 68.
33 Sullivan 1992, 216. Or as one of Smith’s attorneys put it in the oral argument before the Supreme Court, “[W]e are getting here to the heart of an ethnocentric view . . . of what constitutes religion in the United States.” Quoted in Long 2000, 183.
34 Smith at 897.
35 Macedo 2000, 157.
36 Ibid., 205.
37 Kenneth Karst has written eloquently on this theme. “[O]ur courts have a crucial role in expanding the circle of belonging, as they translate the Fourteenth Amendment’s guarantee of equal citizenship into substantive reality for people previously relegated to the status of outsiders.” Karst 1989, 3. With specific reference to religion, he writes that “[R]eligious liberty is not to be conditioned on the individual’s forfeiture of the status of equal citizen-ship.” Ibid., 101.
38 Rutherford 1996, 1074.
39 Ibid., 1075.
40 Pub. L. No. 95–341. In 1968 Congress passed the Indian Civil Rights Act, which ex-tended many of the guarantees of the Bill of Rights and the Fourteenth Amendment to Americans of Indian descent. Some critics of the law within the Native American community, while conceding the altruistic motives behind the law’s passage, saw it as just another chapter in the dismal history of cultural warfare perpetrated by the dominant culture on Native Americans. Interestingly, in deference to Indian sensibilities, Congress chose not to disturb the theocratic nature of much tribal authority by deleting guarantees against establishment of religion from the Act’s list of protected rights. Such provision is consistent with a policy of exemptions, which by their very nature trigger Establishment Clause concerns. 41 Smith at 921.
42 Ibid. at 920–1 (emphasis added).
43 Long 2000, 22.
44 In this regard consider what Carolyn N. Long has written about the Native American experience with peyotism: “As peyotism grew in popularity in Mexico and North America, efforts to suppress the religion became more prevalent. Christian missionaries and church leaders led the antipeyote campaign with the full support of federal Indian agents working in Indian Territory. Government and church officials opposed the religion because it hindered their efforts to assimilate Indians into the general population.” Ibid., 11.
45 Smolla 1998, 938.
46 Eisgruber and Sager 1994a, 1248.
47 Ibid., 1290.
48 “From the recognition of victimization, and of vulnerability to future victimization, flows the constitutional objective of protection.” Ibid., 1252.
49 In practice American government, especially at the local level, has been active in granting exemptions to religious organizations. Increasingly states have instituted their own versions of RFRA, making it possible for “faith-based” groups to avoid compliance with, among other things, land-use regulations and health requirements. “We’re in an era,” ex-plains Marci Hamilton, “when government is extraordinarily deferential to religious organizations. Legislators think that in this era there’s a lot of political benefit in doing good things for religion, and saying no to religious requests is hard for them to do.” Quoted in the New York Times, July 27, 2001. The New York Times article reporting this trend was entitled “Many States Ceding Regulations to Church Groups.” What this government activism largely amounts to, then, is a calculated political decision to reduce the role of government in the enforcement of its general civil and criminal laws.
50 Justice O’Connor wrote in her concurring opinion that “[T]he First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by majority and may be viewed with hostility.” Smith at 902. She then proceeded to deny, as she had in the case of Lyng v Northwest Indian Cemetery Protective Assn. (involving the building of a logging road through government-owned land long held sacred by Native Americans), the free exercise claim of a member of a Native American religious group.In both cases she found a governmental interest sufficiently compelling to withstand the individual’s First Amendment challenge. Criticism of the opinion has focused on its failure to follow through on the promise of its noble sentiment about minority rights. Or as Eisgruber and Sager might say, O’Connor’s ruling against an exemption for the sacramental use of peyote made her announcement of the principle of “unimpaired flourishing” ring rather hollow. Such a principle suggests a much more generous view of accommodation than what governed her ultimate decision. My argument is that the O’Connor position on the purpose of the religion clauses should be connected more to ameliorative/assimilationist considerations than to the principle of unimpaired flourishing. This would have the effect of lowering the state’s threshold for demonstrating a sufficient interest in uniform enforcement, but also of elevating the broader systemic interest in accommodating groups that have a historic purchase on the Court’s solicitude.
51 Radhakrishnan 1995, 118.
52 Nehru 1959, 517.
53 As noted in the introductory chapter, Ashoka was Nehru’s favorite Indian leader, an “astonishing ruler,” for whom the “dream of uniting the whole of India” was a consuming passion. Ibid., 132. Initially pursued through the sword, realizing the dream ultimately relied on Buddha’s teachings.
54 Khilnani 1997, 160.
55 How perverse is suggested by this comment by Tocqueville regarding the obstacles to national unity represented in the phenomenon of caste. “There is a multitude of castes in India. There is no nation, or rather, each of these castes forms a little nation of its own, that has its own spirit, usages, laws, its own government. It is inside of caste that the national spirit of the Hindus is enclosed. The motherland for them is caste. One could seek it else-where in vain, but in caste, it is alive.” Tocqueville 1962, 447. As I suggested in chapter 3, Tocqueville was not at all sanguine about the possibilities for transcending caste; hence for him national unity was at best a dim prospect. As for the democratic prospect: “The very fact that a caste-ridden society like India has embraced a democratic form of government and practised it during forty years would have been hailed by Tocqueville, had he known of it, as a signal victory of the providential trend towards equality which he has prophesied.”Bernard 1988, 404.
56 Radhakrishnan 1995, 133.
57 It is possible to argue that the cultural politics of the Hindu right, while directed against minorities, is not inimical to the concerns of ameliorative secularism. After all, the BJP was the first mainstream political party to have a Dalit president. Also, the most anti-Brahminical of southern parties, the DMK (Dravida Monnetra Kazhagam), has allied itself with the BJP. Nevertheless, the BJP is essentially an upper-caste party, which has been forced by the necessities of operating within a fragmented political environment to adopt certain strategies to broaden its appeal. Thus ideologically it has attempted to integrate lower and middle sectors into a system that has maintained its Brahminical values. These political concessions have caused rifts in the party (e.g., in Gujarat and Uttar Pradesh) among purists and pragmatists. But the essential commitment of the party, which, to be sure, is relatively moderate in comparison with other parts of the Sangh Parivar, can fairly be described as being in tension with an egalitarian social agenda.
58 As Susanne Hoeber Rudolph has noted, these constitutional provisions need not be viewed as contradictory. “They can be seen as points defining the perimeters within which Indian policy is elaborated. They constitute the defining end points of a legal narrative that seeks to satisfice alternative goals, to distribute value between opposites in ways that preserve both.” Rudolph 1998, 16.
59 Justice Brewer, as quoted in chapter 3.
60 Arun Shourie, in an interview with the author, November 19, 1998, New Delhi. Shourie’s remark was voiced in the context of an observation that was meant to distinguish his vision for India from that of the Israelis, for whom, as we have seen, he has great admiration.The main area of Shourie’s disagreement with the Israelis pertains to their support for a regime of personal law. Indeed, it is a revealing disagreement. Thus the fact that religious nationalists in Israel are generally supportive of communally based law, whereas their counterparts in India are fervently attached to the idea of a uniform legal code, is suggestive of the very different political contexts within which secular issues are debated.
61 Radhakrishnan 1995, 119.
62 Ibid., 118.
63 Ibid., 61. Radhakrishnan goes on to say: “We cannot all be welded into one man, though we can be merged into one crowd. We are born separately, and in our essential life we live alone. The State must protect the dharma of individuals and groups.” Ibid. Im-portantly, then, the organization of society must be attentive to the dignity of the individual without ignoring the constitutive nature of groups, which possess their own dharma, that is to say, their own “forms and activities which shape and sustain human life.” Ibid., 105.