I appreciate Alan's attempt to cabin the "divisiveness" concept,
but I wonder whether it works. Nothing is beyond the scope of political
decision-making -- there is always the possibility of constitutional amendment,
and, more importantly, so long as various decisions involve the contested
interpretation of constitutional language, there is the possibility of using
political processes to select Justices who will take a different view of the
matter. Indeed, my sense is that some of the most prominent political
divisions along religious lines have come with regard to decisions that aimed
to take things off the table, but have failed to do so. Roe v. Wade is the
classic example, though in some measure the various government speech
decisions, from the school prayer case onwards, have had that effect as well.
Now it may well be that other decisions have indeed settled matters in
considerable measure, and thus diminished religious groups' political
mobilization as religious groups. But my guess is that it's often not easy to
predict which creates more mobilization of religious groups as religious
groups: a particular executive or legislative policy decision, or a Supreme
Court decision reversing that policy decision.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
> Sent: Sunday, June 08, 2014 7:37 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: "Divisiveness"
>
> If divisive means that people will be upset by a substantive decision than
> Eugene
> is clearly correct. I have always thought the issue was whether a decision was
> one that provoked political divisions along religious lines in the sense that
> if
> government could promote religion (or interfere with religion) religious
> groups
> would have an additional incentive to organize and mobilize as religious
> groups
> in order to make sure that it was their faith that the government promoted and
> that it was not their faith that was subject to government interference.
> Placing a
> church-state issue beyond the scope of political decision-making by
> subjecting it
> to constitutional constraints avoided (or at least mitigated) these kinds of
> political/religious divisions.
>
> There is probably a better term for this concern than divisiveness.
>
> Alan Brownstein
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