I am not a supporter of 10 Commandments displays, and the following point,
in my view, does not fundamentally change the proper result in these cases.
But I don't agree with Steve Jamar's claim "that it is really just one sect,
protestants, that push to establish state sponsorship or endorsement of
religion" (by which I assume he includes 10 Commandments displays).
(1) The MSNBC site that someone linked to earlier reports that "[a]n
AP-Ipsos poll taken in late February found 76 percent [of Americans]
supportive of and 23 percent opposed to Ten Commandments displays" (
<http://www.msnbc.msn.com/id/7053335/>
http://www.msnbc.msn.com/id/7053335/). This must mean that many
non-Protestants support them as well.
(2) Certainly a significant number of Protestants do not support
such displays, which not only indicates that it is overbroad to attribute
the displays to "Protestants" in general, but also strengthens the inference
that many non-Protestants must support them.
(3) In particular, religious displays commonly receive an
affirmative "push" (not just passive agreement) from some conservative
Catholic and Jewish groups. In the Texas case, for example, briefs
supporting the display were filed by COLPA, the coalition of Orthodox Jewish
bodies that often supports such displays (see 2005 WL 263786); by the Thomas
More Law Center, a conservative Catholic organization (2005 WL 226922); and
by a number of social-conservative groups that include lots of Catholics.
Catholic groups have pushed for and/or defended displays in many places,
like Jersey City, NJ, that are heavily Catholic rather than Protestant (see,
e.g., ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999)); see also Sunnum v.
Duchesne City, 340 F. Supp. 1223 (D. Ut. 2004) (Thomas More Center
litigating defense of display in Utah); Allegheny County, 492 U.S. 573
(1989), where the Pittsburgh creche was paid for by a Catholic group, and
the menorah was provided by Chabad Lubavitch.
The fight over these displays is not a fight between Protestants and
non-Protestants, as Steve's comment suggests. It fits more comfortably into
the very different divide between cultural conservatives (of varying faiths)
and cultural progressives -- with the conservatives in this case being
joined (in terms of opinion polls) by most of the large middle of the nation
who aren't culture warriors. The large middle isn't hepped on such
displays, but they don't see any harm from them either, and they account for
the level of support reaching as high as 76 percent.
This is not to defend state sponsorship of the 10 Commandments through
displays. That a large majority supports them (however low-key the support)
of course doesn't make them constitutional, especially if we see the First
Amendment as particularly a guarantor of minority rights. And the very fact
that a lot of the poll support comes from people who probably don't care
very much provides an argument that the displays can cheapen serious faith.
But I do think that to reduce this to a Protestant vs. non-Protestant issue
is incorrect. The traditionalist-progressive divide is necessary to explain
this dispute, as well as, I would suggest, many other Religion Clause
disputes. (With apologies for self-promotion, I write at length about these
different maps of religious divides in a draft piece on "Minority Religions
and the Religion Clauses," downloadable at http://ssrn.com/abstract=594604
<http://ssrn.com/abstract=594604> .)
Tom Berg
University of St. Thomas School of Law, Minneapolis
_____ From: Steven Jamar [mailto:[EMAIL PROTECTED] Sent: Wed 3/2/2005 2:11 PM To: Law & Religion issues for Law Academics Subject: Re: Ten Commandments: My Prediction US law on establishment is decidedly different from that of most of the world. Indeed, most states do not have a prohibition on establishment, just a guarantee of free exercise. I do not think that the US needs to have establishment law as it does to preserve religious freedom, but as it has developed, we have built this wall and it should be maintained. We should also keep in mind the US history with respect to religion, its huge variety of religious traditions, and the fact that it is really just one sect, protestants, that push to establish state sponsorship or endorsement of religion. I personally do not think that many bad consequences would happen if we were to undo our establishment jurisprudence to allow a lot more state sponsorship, but I prefer keeping them separate as we do. Steve On Wednesday, March 2, 2005, at 02:48 PM, A.E. Brownstein wrote: And consistent with having "a decent respect to the opinions of mankind", it would be appropriate for an American constitutional court to explain why American constitutional law reaches a different conclusion with regard to state establishments of religion than do other Western democracies, just as we reach different conclusions about the regulation of hate speech and other liberty and equality issues. Certainly, it is not uncommon for the constitutional courts of other countries to explain why they are unpersuaded by American constitutional doctrine in many cases. Alan Brownstein UC Davis -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ "The modern trouble is in a low capacity to believe in precepts which restrict and restrain private interests and desires." Walter Lippmann
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