Coercion, Neutrality, and Same-Sex Marriage

In a recent article, Daniel Brudney suggests that leaving the question of religious establishment to the majoritarian process, rather than making establishment or nonestablishment a constitutional principle, need not contravene liberal principles. What he terms modest noncoercive establishment protects the free exercise of religious liberty and does not use force. It makes only limited use of the public voice and the public purse—that is, of speech and spending. Any use of these tools that dampened the free exercise of religion because of fears of social ostracism would no longer be modest or noncoercive and would therefore not be compatible with liberal principles. Brudney’s overall point is that strict constitutional separation of church and state assumes that all citizens need to have a strong psychological connection to the overall political community. Emphasis on the desirability of this connection, and thus the rejection of modest establishment, he concludes, is grounded on a substantive and disputable conception of the good, and is therefore potentially not in accordance with liberal principles (Brudney 2005).