Comments on Stephen Carter's Lecture

I am most pleased to participate in this Brennan Symposium. I have deepest affection, indeed reverence, for Justice Brennan, whom I knew for more than thirty-five years. Further, I have great admiration for my friends-Professor Stephen Carter, the lecturer, and Professor Kenneth Karst, my fellow commentator at the program in Berkeley, as well as Professors Ira Lupu and Mark Tushnet, whose responses also appear in this journal. Finally, this program takes place at my favorite law school through the support of my long-time colleague, Tom Jorde. A commentator's assignment is to "pick on" the principal speaker, and I shall not disappoint. Still, there is much in Professor Carter's lecture with which I agree, particularly his criticism of the Supreme Court's recently created doctrine under the Free Exercise Clause. But before I offer more extensive comments, let me disclose the perspective from which I approach the task. Unlike Professor Carter, I bring neither the devotion of a believer, nor the breadth of a philosopher and historian to the enterprise. Rather, I am (I guess) an agnostic, and as one of my philosopher colleagues has often disparagingly observed, I am also an unrepentant pragmatist. My remarks are greatly influenced by this latter condition. I would like to emphasize three aspects of Professor Carter's insightful thesis. First, he argues that if the Court grants special constitutional protection for the free exercise of religion-that is, if the First Amendment "[c]reate[s] some faint possibility of gaining special consideration"-then that constitutional right cannot be absolute (which I agree it cannot), and the Court must draw lines (which I agree it must).' Second, he states that the price of special constitutional protection under the Free Exercise Clause will be pressure on religions and their believers to conform to what the Court says the government may proscribe, or as Professor Carter states it: "[T]he question the religion must ask itself becomes ... not What form of counseling does God require?, but What form of counseling will the