Kumm sobre proporcionalidad y el crucifijo

En una entrada anterior habíamos sugerido una solución local a la polémica de los crucifijos. Ahora hemos leído un clarísimo artículo de Mattias Kumm (las ventajas de ser alemán en yankilandia) sobre los juicios de proporcionalidad en el análisis de las restricciones públicas a los derechos fundamentales. Estos son los párrafos en los que analiza el caso del rezo matinal en las escuelas públicas

….To illustrate the point, imagine a public authority prescribes that the school day in public schools should begin with a common prayer, such as the Apostolic Profession of Faith. Legislative history and public debates reveal that there are three kinds of reasons invoked in support of this legislation. For some, the purpose of the legislation is to further a general commitment to a Christian way of life and help craft souls in the community that are worthy of salvation. Others invoke the importance of religion for themselves and their children and stress the importance of connecting something as basic an experience as public school education with their religious life in order to sustain and nourish it. Still others make claims about the instrumental usefulness of religion for general policy purposes, and point to the connection between religion in schools and low crime rates, low teenage pregnancy rates, and lower drop-out rates. The law passes after vigorous debate and protest by the minority of agnostics, atheists, Jews and Muslims. How would a constitutional court called upon to assess whether an individual’s right to religious freedom was violated rule?

There is no doubt that the right to religious freedom is infringed by such a prayer requirement. The question is whether it can be justified. It can be expected that no court in a liberal constitutional democracy would address the theological and philosophical questions relating to whether compulsory school prayers of this kind are in fact suitable and necessary to help craft souls worthy of salvation. Nor would courts assess, whether, all things considered, the purpose of crafting souls worthy of salvation justified the significant infringement of an individual’s freedom of religion. Instead, there is little doubt that any court in a liberal constitutional democracy would insist that any reasons that depend on the premise that a Christian way of life is the right way of life are simply irrelevant to the issue. Furthering a Christian way of life – or, for that matter, furthering any other perfectionist commitment - would not count as a legitimate government purpose. In US constitutional practice the idea that that the purpose of a government action has to be secular31 captures much of the nonperfectionist commitment of Political Liberalism, though the idea of ‘secular purposes’ would have to be interpreted to also exclude secular perfectionist ideals.

But of course there are other potentially legitimate purposes in play. One possible justification for school prayer could be that the equal right to freely exercise religion requires respect for the majority’s parental interest in having their children connect their educational experience with their religious commitments in order to sustain and nourish it. Here the central question would be whether such an exercise of religious liberty by the majority imposes a disproportionate burden on those parents and children who do not share that belief. Framed in this way, the issue becomes one of delimitating respective spheres of liberty between equal right-bearers. Public authorities have to be neutral in the sense that they are required to respect and take equal account of the competing interests in play and strike an appropriate balance between them. Here the proportionality framework and the idea of balancing in particular clearly provides a helpful structure for assessing the competing claims.

What this means for the resolution of the issue would, of course, depend on the particular features of the social world to which it applies. To the extent that no opt-outs are provided for those who do not share a belief, it is difficult to imagine a context in which compulsory common prayer would not impose a disproportionate burden on the minority. The issue becomes more complex once real opt-outs are provided and a general background culture of tolerance and inclusion minimizes the pressure on the nonbelieving minority to conform. Furthermore, arguments within the balancing exercise relating to beneficial secondary effects would also come into play. On one side, these could include, for example, lower drop-out and teen pregnancy rates, if duly supported by empirical evidence. On the other side of the equation, general policy concerns about keeping life in public institutions free from religious entanglement may have significant weight in a strongly pluralistic and deeply divided society. Clearly, then, much of how this issue would be resolved would depend on contingent features of the social world,which would have to be assessed within the proportionality framework. But even within proportionality analysis, the truth or falsity of religious beliefs and the desirability of a life that derives an ultimate purpose and meaning from religious revelation would not provide reasons that are part of the balancing equation.