As I said, continuing doctrinal chaos. I find it curious that anyone could treat “tradition and history” as truly meaningful, substantive guidelines. International Shoe “traditional notions of fair play and substantial justice”, right to bear arms, incorporation, defining the line between state and federal — all these and more have purported to rely on some version of history and tradition — often while doing bad history, being painfully selective in traditions, and not recognizing that tradition and history are at least as often the problem to be moved away from as the guiding light to be moved toward.
For religious freedom, history and tradition are particularly ill-suited insofar as the only result can be to constitutionalize the status quo – whatever it may be. And so Christian prayers which by their inherent nature exclude and when done in a public forum at the start of official governmental meetings are not an endorsement of religion because of our history and tradition. “In God We Trust” on money is an endorsement, of course, but one that is allowed. I personally don’t mind if these things go on and I don’t care if the constitution is interpreted to allow them under the accommodation-becoming-endorsement approach of the court at this point because I am not a strict separationist — I don’t think religious values should be excised completely from public discourse or actions — but I do wish that those who do these things and push these things would indeed recognize that them for what they are — endorsements of religion by the state in a way that excludes others. The minority adherents must tolerate a lot of this sort of action by private and public players — that is our current constitutional doctrine — the majority can impose on us quite a bit. But, one would hope that this imposition will not keep creeping to the point of actions excluding non-co-religionists from jobs, contracts, participation, education and so on. These decisions are not neutral. They are not cost free. I wish the court would address that with more candor, but it feels it must keep up the pretense of an external, neutral guideline to seem on paper at least to not be choosing sides. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://sdjlaw.org “It’s all about you, using your own mind, without any method or schema, to restore order from chaos. And once you have, you can sit back and say, ‘Hey, the rest of my life may be a disaster, but at least I have a solution.’ ” Marcel Danesi, in an interview about his book, “The Puzzle Instinct: The Meaning of Puzzles in Human Life.” On May 5, 2014, at 4:35 PM, Conkle, Daniel O. <con...@indiana.edu> wrote: > The Court says that Marsh is not merely “an exception,” but it goes on to > write an opinion linked specifically to the context at hand, i.e., > legislative prayer. As I read Kennedy’s opinion, the Court is saying that if > history and tradition clearly approve a practice, then there is no need to > invoke any broader or more general test. Conversely, the Court might need > such a more general test if history and tradition are not so clear in the > specific setting at hand. In any event, I don’t read the Court to be burying > either Lemon or the endorsement test, at least not explicitly, even though > the Court does not apply them here. > > It’s interesting that even the dissenters accept Marsh as valid even though > they would reach a different result under their “fact-sensitive” (Breyer’s > language) approach. > > Dan Conkle > ************************************************ > Daniel O. Conkle > Robert H. McKinney Professor of Law > Indiana University Maurer School of Law > Bloomington, Indiana 47405 > (812) 855-4331 > fax (812) 855-0555 > e-mail con...@indiana.edu > ************************************************ > > > > > . > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern > Sent: Monday, May 05, 2014 1:33 PM > To: Law & Religion issues for Law Academics > Subject: RE: Supreme Court Decides Town of Greece > > One thing that stands out as important for Justice Kennedy is the absence > of an intent to prefer the majority faith. .But what of the effects > test,which is still part of the law until Lemon is formally > overruled.(Interesting that the plurality did not even discuss the vitality > of Lemon.) Is that test irrelevant here only because of the history and > tradition of legislative prayer? Or is something else at work?. > > Marc D. Stern > General Counsel > 212.891.1480 > ste...@ajc.org > > LIKE US: Facebook.com/AJCGlobal > FOLLOW US: Twitter.com/AJCGlobal > > <image001.png> > AJC Global Forum: May 12-14 > ACCESS Summit: May 11-12 > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett > Sent: Monday, May 05, 2014 1:24 PM > To: Law & Religion issues for Law Academics > Subject: RE: Supreme Court Decides Town of Greece > > Dear colleagues, > > I thought that Prof. Marc DeGirolami (St. John’s) made a number of > interesting and helpful observations – which suggest that at least some > matters might have been clarified a bit -- about Justice Kennedy’s opinion in > this post (“The Jurisprudence of Tradition”): > http://mirrorofjustice.blogs.com/mirrorofjustice/2014/05/the-jurisprudence-of-tradition-10-points-on-justice-kennedys-opinion-in-town-of-greece.html > Here are two of his “10 points”: > > 1. By far the most prominent theme in Justice Kennedy's opinion is the role > of tradition and historical practice in validating the practice of > legislative prayer. That point is repeated no less than six or seven times in > all kinds of contexts. The practice is "part of our expressive idiom" and our > "heritage." Justice Kennedy writes that "Marsh is sometimes described as > "carving out an exception" to the Court's Establishment Clause's > jurisprudence," inasmuch as no "tests" were applied in Marsh, but in reality, > "[t]he Court in Marsh found those tests unnecessary because history supported > the conclusion that legislative invocations are compatible with the > Establishment Clause" That's important. It indicates that the mode of > analysis in Marsh was not a carve-out, so much as the place where all > Establishment Clause analysis begins, and, under certain circumstances, where > it ends. > > 2. Note the emphasis on both history and particularism in the following: > "Marsh stands for the proposition that it is not necessary to define the > precise boundary of the Establishment Clause where history shows that the > specific practice is permitted....A test that would sweep away what has so > long been settled would create new controversy and begin anew the very > divisions along religious lines that the Establishment Clause seeks to > prevent." Very interesting. The claim seems to be that it is the rigidity of > the tests themselves in this area, and their failure to grant a kind of > presumptive validity to entrenched social practices and traditions, which > itself generates religious division. > > Best, > > Rick > > Richard W. Garnett > Professor of Law and Concurrent Professor of Political Science > Notre Dame Law School > P.O. Box 780 > Notre Dame, Indiana 46556-0780 > 574-631-6981 (w) > 574-276-2252 (cell) > rgarn...@nd.edu > > To download my scholarly papers, please visit my SSRN page > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfSteven Jamar > Sent: Monday, May 05, 2014 1:17 PM > To: Law Religion & Law List > Subject: Re: Supreme Court Decides Town of Greece > > Doesn’t do much to clarify the topic, does it. So, cannot coerce. Sectarian > is ok. Should not be seen as endorsing because we’ve done it for so long. > It isn’t really that important anyway. And besides the Town tries to spread > it around–it’s just that the only religious folk in town are Christian. > > We still can’t tell the line between endorsement and non-endorsement. We > can’t even know whether we are now into just a coercion test to be measured > by some sort of formerly-known-as-endorsement balancing of a bunch of stuff. > > So advising city and town councils on how to meet the current establishment > standards would require what? A safe harbor would be do it non-sectarian. A > slightly less safe harbor would be go ahead with the sectarian, but try to > balance who does the prayer among denominations and religions formally > represented in your community. Probably ok would be just one guy from one > religion doing it for years on end in a sectarian manner, as long as it > wasn’t coercive (whatever that might mean in this setting) and so long as > some sort of indication was given, regardless of how pro forma and even > insincere, that it the government was not endorsing that particular view or > even religion in general. > > It is clear that separation is almost gone from establishment jurisprudence > now and that we are deep into accommodationist mode and that neutrality means > not as between religion and non-religion but only as among religious sects — > in this singular sort of context. > > Over a third of my students report that every school day in public schools > started with a prayer over the PA system in their schools. > > Steve > > > -- > Prof. Steven D. Jamar vox: 202-806-8017 > Director of International Programs, Institute for Intellectual Property and > Social Justice http://iipsj.org > Howard University School of Law fax: 202-806-8567 > http://sdjlaw.org > > > "In these words I can sum up everything I've learned about life: It goes on." > > Robert Frost > > > > > > On May 5, 2014, at 12:44 PM, Friedman, Howard M. > <howard.fried...@utoledo.edu> wrote: > > > The Supreme Court decided Town of Greece today, upholding town's prayer > practices in a 5-4 decision. Details at Religion Clause at > http://religionclause.blogspot.com/2014/05/supreme-court-upholds-sectarian_5.html > > Howard Friedman > _______________________________________________ > 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.
