Hands Off: When and about What

I. TWO GENERAL THOUGHTS I was very pleased to have the chance to comment on these four thoughtful and challenging papers when they were delivered orally at the Association of American Law Schools (AALS) Convention in January, and I am glad to have the opportunity to share some of my unsystematic thoughts about their published versions. I begin with two general observations before addressing the individual essays in turn. When I came up with the phrase "Hands Off' to liven the title of my article on judicial resolutions of property disputes generated by splits in religious groups, (1) I had not reflected on the wide range of issues that might be couched similarly. The themes of the AALS symposium and the substance of these papers, as well as Samuel Levine's Introduction, show just how broadly that concept may stretch. A great many problems regarding the law of the religious clauses (2) might be put in terms of whether the government should refrain from involving itself with religion. With recognition of the hands-off implications of various issues, we need to keep in mind an important caution. That concept is far from capturing all the constitutional values that are relevant, and the dangers of hands on are much more worrisome in some instances than in others. Here is one illustrative comparison. Were the courts to delve into religious doctrines to resolve intrachurch property disputes, they would be choosing the understanding of one group of sincere worshippers over the understanding of another such group. These disputes arise just because practitioners understand the requisites of their faith in sharply opposed ways. To decide in favor of one side promotes the exercise of religion of that side at the expense of the exercise of religion of the other side. By contrast, if the courts make some inquiry into the content of the religious belief of an individual who seeks an exemption from some standard requirement (say, to be willing to work on Saturday in order to receive unemployment compensation), (3) it may fail to keep its hands off; but it does something that is necessary to facilitate certain forms of free exercise, it does not need to resolve any competing religious claims, and it does not frustrate the religious exercise of one of two competing groups. (4) One may conclude (as I do) that the reasons for the government to stay out of assessing religious claims is much stronger when resolving disputes by reference to church doctrine than when the content of an individual's claim is at stake, and that the value to free exercise of making the latter inquiry is well worth the cost. But whatever conclusion one draws about this particular comparison, one needs to keep in mind that the rubric of hands off is one possible beginning, not the end, of analysis, My second general point concerns a difference between what one needs to resolve in theory in order to have a coherent, systematic approach to a range of issues, and what actual decisionmakers must settle in order to deal with most practical issues. Despite the aspirations and entirely appropriate efforts of legal scholars to critique murky confusions and compromises and offer proposals to clarify, judges and other legal actors manage to stumble along with fair success without resolving certain deeply troubling theoretical issues. One such issue is exactly what constitutes legislative intent. Another may be what precisely counts as religious for various constitutional and statutory purposes. (5) Of course, if the law requires classification in terms of religion, decisionmakers need some notion of what religion is. A number of scholars, including myself, have offered suggestions for how to draw the necessary line(s). (6) But if in the vast majority of cases, a claim or attribute is definitely religious or definitely not religious without regard to which of the competing approaches one follows, judges may manage adequately almost all of the time without clearly adopting one approach in lieu of others. …