Private Religious Choice in German and American Constitutional Law: Government Funding and Government Religious Speech

Abstract

The sharply contested religion cases from Germany in the late 1990s...point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through either inclusion or exclusion from the programs. To fully make sense of government funding and the Establishment Clause, we must consider its role in protecting the power of public discourse within the larger political process. The same holds for government religious speech: individual autonomy points in a number of different directions, leaving us with choices among different kinds of distortion and different roles for the courts, which we cannot resolve based on private religious choice alone. The German cases focus us on one normative vision of the political process which will probably never become our vision, but which does help us to see that even our decisions about government religious speech depend upon our assumptions and aspirations about the political process. The appeal of comparative law lies in the details, and the details of the current disputes in Germany around religion and government ask us to think again about exactly what we expect from the Establishment Clause here in America.