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-slavery side, and of course the Establishment Clause can't invalidate 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." _______________________________________________ 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.
