As Professor Esenberg suggests, coercion is a highly relevant consideration in addressing religious expression in governmental settings, but there are other important considerations as well--whether the expression is sectarian or nonsectarian, whether it is worshipful or nonworshipful, whether the governmental practice is traditional, and whether the expression is governmental, private, or mixed. Or so I have argued in suggesting that a multivariable approach would better reflect the full range of constitutional values in this context. Of course, such an approach would be messy, reflecting as it would an approach having some affinity to Justice Breyer's much-criticized opinion in Van Orden.
For anyone would might be interested, my essay is "The Establishment Clause and Religious Expression in Governmental Settings: Four Variables in Search of a Standard," 110 W. Va. L. Rev. 315 (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=995777 Dan Conkle ******************************************* Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ******************************************* -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Friday, July 25, 2008 11:26 AM To: Law & Religion issues for Law Academics; [EMAIL PROTECTED] Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' My own personal reaction to invocations is often as Professor Friedman describes and my concern about the asymmetric treatment of government speech that makes religious dissenters feel like outsiders is more acutely presented in cases involving curricular speech, private speech that can be deemed to be government sponsored, faith based initiatives and the (admittedly rare) types of government proclamations of which the San Francisco Board of Examiners is so fond. But others see things differently and this is one of the reason that neither Marsh nor Van Orden buy us much civil peace. The idea that one can, in the words, iirc, Warren Nord, achieve neutrality through exclusion doesn't survive our modern idea of expanded government. This is one of the reasons that the Court's regime of strict separation broke down. Those who were being excluded did not see the naked public square as neutral. I largely agree with Professor Brownstein that it would be undesirable for "the majority [to be] free to commandeer government resources for the purpose of promoting and influencing the religious beliefs of citizens about "worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d" to the same extent that government uses its resources to communicate messages about patriotism, military service, public health, civil rights and a host of other value-based subjects." What I think it ought to be able to do, in service of a public and not entirely sectarian purpose, is to acknowledge and include the religious sentiments of its citizens as it serves that purpose without the type of restrictions often associated with the Lemon test or required by Justice O'Connor's endorsement test. In doing so, it ought not be permitted to coerce affirmation or participation in religious ceremonies or otherwise impose legal disabilities on nonadherents. My instinct is also that certain types of government messages can be so hostile to religious minorities that they impede their ability to function in civil society. An extreme example would be the Nazi party's vilification of Jews - something which supplemented coercive practices but which wasn't, strictly speaking, itself coercive. But I don't think it ought to be considered "coercive" to be exposed to a prayer at a graduation ceremony or to see a monument depicting the Ten Commandments in a public square. It is not coercive to see crosses in a memorial to the slain students at Columbine or to be exposed to the treatment of religious perspectives as they relate to subjects and activities with which the state is legitimately involved. While some of the latter is - or should be - permitted under current doctrine, I think that the ideas of coercion and substantial impairment of participation in civil society gets at what we ought to be concerned for rather than notions of mere endorsement (O'Connor) or advancing religion or having a predominant secular motivation (Souter in McCreary) - all with little regard to the extent of burden upon nonadherents. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] ________________________________ ________________________________________ From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Christopher Lund [EMAIL PROTECTED] Sent: Friday, July 25, 2008 9:16 AM To: religionlaw@lists.ucla.edu; [EMAIL PROTECTED] Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' "That kind of jockeying for government recognition of particular denominations-- or for an implicit government statement rejecting supposed antireligious views-- seems to be just the kind of political divisions along religious lines that the Establishment Clause was supposed to prevent." Yes indeed to Professor Friedman's statement, and (I would add) it's also the sort of divisions that Marsh itself was trying to prevent. I tend to see Marsh as an earlier Van Orden -- government gets to act religiously, but not too much. Breyer says in Van Orden that upholding the momument (not striking it down) is the best way to avoid "religiously based divisiveness." I bet Marsh court had a thought or two along those lines -- that the best way to keep the peace was by approving legislative prayer with some (what it thought to be modest) strings attached. Can we all agree that Marsh has utterly failed in this regard? Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 8:14 AM >>> I think we need to ask why so much passion is expended on the question of invocations to begin meetings of government bodies. I find it hard to believe that proponents feel legislators will make significantly different decisions if the form of prayer at the beginning of their meeting is slightly different. Isn't this really about garnering government recognition of the validity, or at least respectability, of a particular religious belief? Isn't that why it is newsworthy when for the first time a Hindu or Sikh or Buddhist offers an invocation at city council or in a state legislature? I suspect that if a quiz were given to those in attendance, almost no one could repeat any of the content of an invocation a half hour after it was offered. But they could tell you who delivered it, or what religious denomination the person represented. That kind of jockeying for government recognition of particular denominations-- or for an implicit government statement rejecting supposed antireligious views-- seems to be just the kind of political divisions along religious lines that the Establishment Clause was supposed to prevent. Howard Friedman ________________________________ From: [EMAIL PROTECTED] on behalf of Jean Dudley Sent: Thu 7/24/2008 8:16 PM To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics Subject: Re: Appeals Court Bans Prayer 'in Jesus' name' On Jul 24, 2008, at Thu, Jul 24, 2:51 PM, Gordon James Klingenschmitt wrote: > Professors Lund and Essenberg seek the larger question, which I > believe seems to involve whether a government can pray, at all. We > all agree individuals can pray, and the First Amendment protects > individual speech by private citizens. But can governments pray? Ostensibly, one particular form of government can pray; a theocracy. I suppose a monarchy such as the United Kingdom can pray as well, if the monarch is also the head of the state church. However, we are a representative democracy, and if *our* government prays, the prayer will of necessity be sectarian, and therefore exclusionary of other sects, and by default will be endorsing one religion over another and thus we have ipso facto a state religion. All well and fine it it's *your* religion, but not so fine if its not *your* religion. Perhaps, Mr. Klingenschmitt, your question should be "should governments pray?". To which I would answer a resounding, emphatic, "Not just no, but HELL NO!" Jean Dudley _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
