Abstract
Among the central questions concerning the First Amendment's Religion Clauses is whether their fundamental goal is nondiscrimination or a substantive liberty. Do they primarily require that government not engage in discrimination among religions or between religious and nonreligious ideas? Or do they primarily guarantee decisions about religious matters and religious life a zone of liberty or autonomy against state restriction, or a degree of separation from state involvement? The two approaches, nondiscrimination versus substantive liberty or autonomy, overlap and sometimes produce similar results, as for example when free speech rights protect the freedom of religious and nonreligious expression equally broadly. 1 Often we do not have to choose between the approaches. But in their pure forms, nondiscrimination and substantive autonomy will necessarily produce some divergent results in a society, such as ours, where government is extensive and involved in many aspects of life. When government regulates society extensively, allowing it to regulate religion equally extensively will clash with people's ability and right to exercise religion freely. On the other side, because federal, state, and local governments promote a variety of moral ideals they favor - through legislation, tax-supported spending, state-operated schools, and other means - to allow them similarly to promote their favored religious ideas would involve them deeply in religious matters, in ways that have been thought to violate the prohibition on establishments of religion. Supreme Court decisions and commentators can be found to support both nondiscrimination and substantive autonomy. 2 Many observers see the Court's emphasis changing ...