Title: Message
It is not that difficult, in my view. There
is a formalist objection to the decision. I don’t buy it, but I
recognize that it exists, and this objection is not necessarily rooted in
religious purpose or intent. However, why would one want to make a formalist,
jurisprudential objection by posting the Ten Commandments in defiance of the
Court? That is what I don’t understand at all. It makes no real world
sense to me whatsoever.
-----Original Message-----
From: Volokh, Eugene
[mailto:[EMAIL PROTECTED]
Sent: Friday, July 08, 2005 4:21
PM
To: Law & Religion issues for
Law Academics
Subject: RE:
GovernmentdisplaysprotestingagainsttheSupremeCourt'sEstablishmentCla...
Doesn't this suggest a possible weakness of inquiring into whether a purpose is
"primary"? Those who see government action as manifestations of
a supposed Protestant Empire, and thus naturally suspect Protestant government
officials of a desire to suppress non-Protestants, may easily decide that the
purpose to promote religion is the primary one. Those who see the
Court's jurisprudence as misguided or at least highly questionable, and those
who think that both Protestants and non-Protestants have legitimate reason to
question it, may naturally see that the purpose to criticize the Court and
bring about valuable (or at least respectable) legal change is the primary
one. Moreover, if one of the city's purposes is indeed to criticize the
Court's majority view, I suspect that the majority Justices would be especially
handicapped in objectively judging their critics' motives.
I realize that sometimes
we do judge legislative intent -- but fairly disentangling what is
"primary" and what is "secondary" seems extraordinarily
difficult even compared to the normal legislative intent inquiries.
-----Original
Message-----
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael
Sent: Friday, July 08, 2005 1:11
PM
To: Law & Religion issues for
Law Academics
Subject: RE:
GovernmentdisplaysprotestingagainsttheSupremeCourt'sEstablishment Cla...
I
cannot believe that that the religious purpose in the hypothetical is, in the
real world, anything other than primary.
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]
Sent: Friday, July 08, 2005 12:30
PM
To: religionlaw@lists.ucla.edu
Subject: Re: Government displaysprotestingagainsttheSupremeCourt'sEstablishment
Cla...
In a
message dated 7/8/2005 12:18:52 P.M. Eastern Daylight Time, [EMAIL PROTECTED]
writes:
Would city councils be permitted to express their dissenting views this way?
In Roe,
the Supreme Court concluded that states could not entirely prohibit abortion,
that they could, in fact, do almost nothing about abortion practices in the
early parts of the now disregarded trimester approach. But in subsequent
cases, the Court affirmed the ability of states and municipalities (the City of
St. Louis in one case) to prefer child birth over abortion. It seems to
me that the principle that the Court sustains in those cases is that the
people, acting through their elected representatives, may take a collective
view of things -- even when contrary to the machinations of that eminent
tribunal. So really the question is focused on whether there is a
violation of the Establishment Clause in such a display.
But the
way Eugene presents the hypothetical, religious purpose is, in fact,
non-existent or tertiary at best. So, rather than the purpose problem,
the question would be effect. While she remains pending appointment of
her successor, would O'Connor's reasonable observer be informed of the long
(back beyond colonial days) tradition of dissent and disagreement that runs
through this nation's civil veins? If so, how could such a reasonable
observer draw any conclusion but that anger at the Court and justification for
that anger drove that display, and understanding of that anger and
understanding of the justification for that anger were the primary effects of
it?
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