I'm not quite sure exactly how the distinction between
"denominational religious beliefs" and "ethical religious precepts"
quite works here. The bills involved here, after all, dealt not with
abstract theology, but with matters that very much relate to ethical
religious precepts -- abortion and same-sex marriage.
Moreover, it seems to me that "the official policy" of many
jurisdictions *does* "conform[] to the views of people who hold specific
theological or denominational views." That's true as to bans on murder,
robbery, perjury, incest, prostitution, and more. Each such ban
conforms to the view of some people who hold theological or
denominational views that endorse such a ban (though it also conforms to
the views of other people who support the ban for other reasons, but I
take it that the same is true of the law that Perry was signing). Even
if Perry's signing ceremony suggested that this fact was indeed factual,
I don't see what's wrong with it.
Nor do I see how Perry's signing ceremony "suggest[s] that these
kinds of religious precepts and the communities that adhere to them are
held in special regard by government." Rather, it seems to me that it
suggests that a particular religious community is held in regard by
Perry, who wants to use this gesture of regard to cement his bond with
the community. (It may also remind the community of the fact that the
legal system in general reflects their views, but that doesn't mean that
the religious community is "held in special regard by *government*.")
Eugene
Alan Brownstein writes:
> I think there is a
> distinction
> between what we used to call sectarian religious beliefs and
> what we might
> call ethical religious precepts. Today, I would use the term
> distinctly
> religious or denominational, rather than sectarian, but the
> idea is the
> same. I am neither surprised nor offended if a governor who
> adheres to a
> religion that opposes same-sex marriage supports public
> policy consistent
> with his faith -- even though my religious beliefs support a contrary
> conclusion. People of various faiths or no faith may similarly oppose
> same-sex marriages. And the governor may make it clear that
> he is aligned
> with constituencies, religious or otherwise, that support his
> position on
> same-sex marriage.
>
> But I don't expect the governor to do things that suggest the
> official
> policy of the state conforms to the views of people who hold specific
> theological or denominational views -- or to perform official
> acts that
> suggest that these kinds of religious precepts and the
> communities that
> adhere to them are held in special regard by government. That raises
> Establishment Clause concerns.
>
> Is this a line that can always be easily identified? No. But
> I think there
> is a difference between the President singing a hymn at a
> Church service,
> delivering a sermon at a Church, and delivering the State of
> the Union
> address from the pulpit of a Church.
>
> And I think there is a difference between a Governor who
> invites various
> public and private leaders, religious or otherwise, to a bill signing
> ceremony at a government building -- and a governor who
> signs a bill in a
> house of worship surrounded by people of only one religious
> persuasion.
>
> Alan Brownstein
> UC Davis
>
>
>
>
>
> At 12:57 PM 6/6/2005 -0700, you wrote:
> > But a sermon by the Governor, or other statements by the
> >Governor, would leave the same impression. Moreover, if one simply
> >knows that the Governor is a devout Christian who views
> Christianity as
> >an important guide to what is right and what is wrong, then it would
> >seem pretty likely from that alone that the Governor's public policy
> >will be made, generally speaking, in a way that conforms with the
> >tenets of those the Governor deems Christians. I'd assume that if a
> >governor were a deeply committed feminist, environmentalist,
> >libertarian, Marxist, or whatever else, I would get the
> impression that
> >public policy will be made in a way that conforms with those tenets
> >(subject to the unavoidable compromises created by the political
> >process). Why should I expect anything different if the
> governor is a
> >deeply committed Christian?
> >
> > And this, I think, ties to a broader point. People
> who belong
> >to religious minority groups known that they are in the
> minority. And
> >to the extent that religious views are tied to public policy
> >prescriptions -- quite likely when the religions deal with
> morality as
> >well as abstract theology -- those minority groups must
> surely realize,
> >even without the Governor's saying anything, that in their
> jurisdiction
> >public policy will generally be made in a way that conforms with the
> >tenets of the majority religious groups. So the impression
> mentioned
> >in the first sentence of Sandy's message would, I think, be
> there quite
> >independently of the governor's bill-signing practices; it's
> hard for
> >me then to see why these bill-signing practices are particularly
> >violative of the spirit of the Establishment Clause.
> >
> > One may well say that government officials should
> try to avoid
> >rubbing the minority's nose in this fact of politics. At the same
> >time, as I mentioned before, even government officials who
> would honor
> >this guideline, if all else is equal, may find that all else is not
> >equal, and that it's politically important -- both personally and to
> >their ideological projects -- to public convey kinship to a certain
> >politico-religious group even when it reminds the religious
> minority of
> >what I presume the religious minority has known all along.
> >
> > Eugene
> >
> >Sandy Levinson writes:
> >
> > > This "reasonable Texan" has the impression that only
> Christians are
> > > treated as "friends" by the Governor of Texas and that
> public policy
> > > will be made in a way that conforms with the tenets of those the
> > > Governor deems Christians. But, then, like Homer Plessy, I'm
> > > undoubtedly too quick to take offense, and I should
> realize that I'm
> > > being treated equally even if I'm most definitely in the back of
> > > Rick Perry's particular bus. (Though, in fairness to Perry, if I
> > > were a right-wing Republican like a member of our synagogue in
> > > Austin, who eagerly collaborated with the DeLay gerrymander,
> > > I'm sure I'd be welcome into the inner sanctum. Just as I
> > > doubt that Jim Wallis is one of the "Christian friends" of
> > > Rick Perry.)
> > >
> > > Sandy
> > >
> > >
> > >
> > > -----Original Message-----
> > > From: [EMAIL PROTECTED]
> > > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh,
> > > Eugene
> > > Sent: Monday, June 06, 2005 3:29 PM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: Rick Perry and separation of church and state
> > >
> > > I agree that giving a sermon at a church isn't identical to
> > > signing a bill at a religious gathering. But the only "official"
> > > effect of signing a bill flows from its having been
> signed. Perry's
> > > signing it at a religious gathering in no way affects the
> contents
> > > of the bill, or any other legal obligation that anyone
> possesses.
> > > The choice of where and how to sign the bill is a political
> > > decision, aimed at sending a political message to a political
> > > constituency.
> > >
> > > Both a sermon and the signing convey the impression
> that the
> > > governor holds certain religious views, and thinks they
> are right.
> > > Neither the sermon nor the signing should, I think, lead a
> > > reasonable person to conclude that the State of Texas -- as an
> > > entity, as opposed to a group of people -- holds certain
> religious
> > > views, whatever that might mean. And to say that Perry
> is conveying
> > > the impression that he holds certain religious views "in
> the course
> > > of an official act" still seems to me unresolved: Why,
> as a matter
> > > of constitutional law or constitutional spirit, should we care
> > > whether a political official is trying to strengthen his
> > > bonds with a politically influential religious group, in the
> > > course of a signing ceremony as opposed to in the course of a
> > > sermon? In both instances, it seems to me, the message ("I'm
> > > a Christian, and I'm trying to win more favor from a
> > > particular subgroup of Christians") is the same.
> > >
> > > Eugene
> > >
> > > > -----Original Message-----
> > > > From: [EMAIL PROTECTED]
> > > > [mailto:[EMAIL PROTECTED] On Behalf
> Of Steven K
> > > > Green
> > > > Sent: Monday, June 06, 2005 11:51 AM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: Rick Perry and separation of church and state
> > > >
> > > >
> > > > Eugene continues to equate Perry's action with other
> > > > quasi-official/ quasi-private acts such as a governor giving a
> > > > sermon at a
> > > church or
> > > > Bush speaking at a religious pro-life rally. I agree
> that these
> > > > latter events are of a political nature and will usually be
> > > perceived
> > > > as such. I may be offended by them, but they are probably
> > > too close
> > > > to the partisan/private roles of an official to transgress
> > > the EC in a
> > >
> > > > real sense. But Perry's act is clearly different -- it is
> > > > primarily official, and as such, he as the chief state
> official is
> > > > giving the impression of favoring Christianity in the
> course of an
> > > official act.
> > >
> > > > So he meets Eugene's #1 and probably #2 (as governments
> frequently
> > > > speak through their officials, particularly when one represents
> > > > the entire state).
> > > >
> > > >
> > > > Steve Green
> > > > Willamette University
> > > >
> > > >
> > > > > Sandy Levinson writes:
> > > > >
> > > > >> As to spirit, why not try "avoid using one's
> official position
> > > > >> to give needless offense to persons with different
> > > religious views by
> > > > >> making them feel marginal members of the community" (which
> > > > I take it
> > > > >> is close to, but not the same as, O'Connor's "endorsement"
> > > > position).
> > > > >> The problem as several postings are making clear, is what
> > > > it means to
> > > > >> "use one's official position." There are no bright lines,
> > > > but I find
> > > > >> Mark Tushnet persuasive that bill signing and the
> > > hoop-la attached
> > > > >> to such is more "official" than a sermon on Sunday
> > > commenting on a
> > > > >> bill-signing that occurred in a state building in Austin.
> > > > >
> > > > > Hmm -- even as spirit goes, that's a pretty amorphous
> > > > term. Many
> > > > > people are offended when the government -- either the
> courts or
> > > > > government agencies, such as (most recently) the L.A. City
> > > > Council as
> > > > > to the L.A. city seal -- excises religious components from
> > > > government
> > > > > speech. Some people are, I suspect, offended if it there
> > > > were a norm
> > > > > that politicians could do signing ceremonies in front of
> > > > every group
> > > > > with which they want to cement political bonds (feminist,
> > > > > environmentalist, pro-life, pro-choice, and so on) except
> > > religious
> > > > > groups.
> > > > >
> > > > > How can these be distinguished under Sandy's
> > > > definition? One way
> > > > > might be to say that these people would be offended but
> > > > wouldn't "feel
> > > > > marginal members of the community," presumably because
> > > > they're members
> > > > > of a majority group (Christians, religious people,
> and so on).
> > > > > But it's far from clear to me that this would be
> right, either
> > > > > legally/ethically or empirically: Presumably many
> Christians or
> > > > > religious people may still feel "marginal" either because
> > > they see
> > > > > themselves as members of a smaller subgroup (e.g.,
> > > especially devout
> > > > > evangelicals) or because they feel that while they're the
> > > > majority in
> > > > > government, they are being made marginal by legal elites.
> > > > >
> > > > > Another might be to stress the "needless" -- excluding
> > > > religious
> > > > > materials from government speech may offend some, but
> > > > there's a "need"
> > > > > for such exclusion (presumably avoiding offense to
> > > others). But if
> > > > > that's so, then I take it Rick Perry could make similar
> > > arguments:
> > > > > There's a "need" to reach out to an important religious
> > > group that
> > > > > feels alienated from the legal system on certain issues,
> > > because of
> > > > > what it sees as elite hostility to its views (on abortion,
> > > > evolution,
> > > > > and so on). And this is only if one limits need to
> > > good-government
> > > > > need; if one includes a politican's political needs or
> > > > desires, then
> > > > > cementing bonds with an important political group surely
> > > qualifies.
> > > > >
> > > > > Eugene _______________________________________________
> > > > > To post, send message to Religionlaw@lists.ucla.edu
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> > > >
> > > > _______________________________________________
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