Yes, that's right, Mark. I do not mean to be referring to "religious motivation," but instead to be referring to a "but for" objective of promoting [expressly] [specifically] [uniquely] [your adjective here] religious actvities/beliefs/doctrines. Of course this is a very fluid concept -- but the Ten Commandments cases from Texas and Kentucky, and Eugene's hypo, are easy cases, no matter how you'd slice it.
-------------- Original message --------------
> Sorry for the additional post, but perhaps I misread Marty's proposal. He
> talks not of a religious purpose but rather of a purpose to advance
> religion. I suppose one can say that enactment of social welfare legislation
> and abolition of slavery was not done for the purpose of advancing religion,
> though it was done for a religious purpose. Perhaps he could elaborate on
> how his approach would amend Lemon's first prong, which seems to deal not
> with whether there is a purpose to advance religion, but with whether there
> is on the one hand a secular purpose, or on the other a religious purpose,
> for the governmental action.
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
> -----Original Message-----
> F! rom: Scarberry, Mark
> Sent: Tuesday, July 12, 2005 12:55 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Government displaysprotestingagainsttheSupremeCourt's
> Establishment Clausejurisprudence
>
> Let me understand. If government action would not have been taken "but for"
> the religious purpose of those who take the action, then, according to
> Marty, the action violates the Establishment Clause under the first prong of
> the Lemon test. Such a "but for" test as a general matter in Establishment
> Clause cases would eliminate much of the social welfare and
> antidiscrimination legislation that has been enacted, probably along with
> the (somewhat) progressive income tax scheme.
>
> Abolition of slavery would never have occurred without a religious
> motivation for it. That's not to say that religion didn't also play a role
> on the pro-sl! avery side, and of course the Establishment Clause can't
> inva lidate a later Constitutional amendment, but an interpretation of the
> Establishment Clause as setting up a test that would be violated by the
> post-Civil War Amendments (including the 14th under which the Est. Clause
> has been incorporated against the states!) does not seem plausible to me.
>
> Perhaps Marty means to limit such an approach to cases in which a government
> actor posts or uses explicitly religious language.
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
> -----Original Message-----
> From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
> Sent: Tuesday, July 12, 2005 12:41 PM
> To: Law & Religion issues for Law Academics; Law & Religion issues for Law
> Academics
> Cc: Volokh, Eugene
> Subject: RE: Government displaysprotestingagainsttheSupremeCourt's
> Establishment Clausejurisprudence!
>
> Forget "primary" and "secondary." What the Court appears to be getting at
> in Epperson/Edwards/Wallace/McCreary County -- the so-called "purpose prong"
> decisions -- is whether an objective to advance religion is a *but for*
> cause of the state action. (Yes, I know that there are problems with a "but
> for" causation test, too -- but I think it's about as close as we're going
> to get to describing what the doctrinal rule is and should be in the mine
> run of cases.)
>
> And, as many of us have written in this thread, the answer to *that*
> question in your hypothetical would be "of course it is."
>
>
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