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

Abstract

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 jurisdictional fact as significant because the post-incorporation Court has never made a distinction among levels of government - local, state, or federal - when considering Establishment or Free Exercise Clause challenges. This Article argues that courts and commentators should make such a distinction. More specifically, it argues 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. The usual parochialism story is that local political institutions are often hostile to religious minorities and therefore particularly in need of central oversight - judicial or otherwise. I argue against this conventional wisdom. I contend that local government - and more generally the decentralization of power - is a robust structural component of religious liberty. On this account, 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 statues 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.