Re: Government criticism of the Supreme Court on religion-related materials

[Ed Darrell]

If the protest involves passing a resolution, which has nominal costs and minimal staying power and coercing effect, let them do it.

 

If the protest involves getting an engraved stone monument that will last for time and all eternity as a poke in the eye to the Court and any citizen who agrees with the Court (or, in the inflammatory version, "any citizen who honors the First Amendment"), weigh the costs and whether there were less costly, less coercive means of making the protest; check to see if there was a less establishment-oriented method of making the protest, and figure from there.

 

I think the Court bent over backward to allow the Texas monument -- but it is colorably within the claim that the displays in the Supreme Court chamber itself and in the House of Representatives chamber are fine.  Both of those displays were devised by committees of historians, designed to depict the heritage of the law; most of the people portrayed were known for things primarily other than religion; several different religious traditions are represented in both displays, and among those who were religiously-known (such as Mohammed and Moses), they were known for being receivers or givers of laws.

 

It's been my observation that the displays that get into trouble are those that don't feature the pagans, animists, Jews, Moslems, atheists and French whose contributions help our laws today.  One might make a case that they are bad because they do not accurately show the history.

 

Ed Darrell

Dallas

"Volokh, Eugene" <[EMAIL PROTECTED]> wrote:

So let return to the hypo, though refine it in light of Marty's
reading of McCreary: Say several city council members put together a
display featuring the documents that Justice Scalia points to in his
opinion, and also the Ten Commandments that was the subject of his
opinion, and that four Supreme Court Justices would leave the government
generally free to post.

They genuinely want to vividly express Justice Scalia's argument
against the Court's jurisprudence, by pointing to the importance and
felt legitimacy of religious speech throughout American history. But
the reason they feel so strongly about this is that they think the
government should endorse religion (and not just thinking that it should
be free to endorse religion but that it shouldn't exercise this
freedom). If it weren't for that, they'd pay as much attention to
McCrea! ry as they would have to the average Supreme Court case, which is
to say not much.

They are also well aware that posting all those documents, and
highlighting how many revered Americans praised God and thanked God, may
in some measure spread religiosity. They're pretty happy about that.
Yet they do sincerely want to express their outrage at the Court, and
think (quite reasonably) that borrowing Scalia's original meaning /
tradition theory, and illustrating it with Scalia's examples, is the
best way of doing that.

Constitutional? Or should federal courts enjoin this
state/local government criticism of the federal courts' work product?

Eugene

> -----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."
>
>
> > Well, I take it that the reason may be both resentment
> at what many
> > people see as the Supreme Court's improp! er overriding of
> popular will,
> > and a desire to endorse religion. How can courts decide in a
> > principled way which is "primary" and which is "secondary"?
> >
> > But even if this is found to be a primary religious
> purpose, it seems
> > to me a mistake for federal courts to interpret the First
> Amendment as
> > barring criticism of those courts by state and local entities.
> > Whether the criticism of a federal body is religiously motivated or
> > not, it ought to be constitutionally protected against federal
> > suppression.
> >
> > Eugene
> >
> > > -----Original Message-----
> > > From: [EMAIL PROTECTED]
> > > [mailto:[EMAIL PROTECTED] On Behalf Of
> > > Newsom Michael
> > > Sent: Tuesday, July 12, 2005 10:47 AM
> > > To: ! Law & Religion issues for Law Academics
> > > Subject: RE: Government
> > > displaysprotestingagainsttheSupremeCourt's Establishment
> > > Clausejurisprudence
> > >
> > >
> > > WHY criticize McCreary? WHY do any of these "intertwined"
> > > things? The primacy of the religious purpose is clear in all
> > > of them. Nobody is going to do any of these things except
> > > for, primarily, a religious reason or purpose.
> > >
> > > -----Original Message-----
> > > From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
> > > Sent: Friday, July 08, 2005 4:15 PM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: Government displays
> protestingagainsttheSupremeCourt's
> > > Establishment Clause jurisprudence
> > >
> > > Well, that's the complic! ated thing here. The
> > > disagreement is meant to (1) criticize the Supreme Court, (2)
> > > possibly get the constitutional law changed, by pushing a
> > > constitutional amendment, by getting Justices with different
> > > views appointed, or by getting the current Justices to change
> > > their minds, (3) persuade the public that endorsing religion
> > > is permissible, and (4) endorse reliance on God's word in
> > > government action as morally and theologically important,
> > > valuable, and correct. These items, though, are closely
> > > intertwined -- a big part for the argument for #1, 2, and 3
> > > is either that #4 is correct or at least that lots of
> > > important and respected American leaders and government
> > > bodies have accepted #4 as correct. How do we tell what's
> > > the "primary" purpose ! here, which McCreary calls on us to do?
> > > And how can the courts block such messages without
> > > interfering with local government's abilities to participate
> > > in the debate about #1, 2, and 3, which (especially the
> > > debate about #2) is an important part of national self-government?
> > >
> > > Eugene
> > >
> > > > -----Original Message-----
> > > > From: [EMAIL PROTECTED]
> > > > [mailto:[EMAIL PROTECTED] On Behalf Of
> > > > Newsom Michael
> > > > Sent: Friday, July 08, 2005 12:46 PM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: Government displays protesting
> > > > againsttheSupremeCourt's Establishment Clause jurisprudence
> > > >
> > > >
> > > ! > If the disagreement is meant to further a religious
> agenda, then
> > > > of course the display is unconstitutional. I can't conceive of
> > > > how the "primary purpose" as you put it, could be anything else.
> > > >
> > > > ----Original Message-----
> > > > From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
> > > > Sent: Thursday, July 07, 2005 6:47 PM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: Government displays protesting against
> > > > theSupremeCourt's Establishment Clause jurisprudence
> > > >
> > > > Even setting aside the rather overwrought
> charge of treason, is
> > > > this even civil disobedience? It would only be that if
> the Court
> > > > were to conclude that such a display is unconstitutional. And
>! > > > therein lies the question: When the government's
> primary purpose
> > > > is to convey its disagreement with the Court's decision
> (albeit on
> > > > the subject of religious speech), and when the display both
> > > > conveys this disagreement and conveys the government's
> view that
> > > > endorsement of religion is proper, should that be treated as
> > > > unconstitutional?
> > > >
> > > > Eugene
> > > >
> > > > > -----Original Message-----
> > > > > From: [EMAIL PROTECTED]
> > > > > [mailto:[EMAIL PROTECTED] On Behalf Of
> > > Brad Pardee
> > > > > Sent: Thursday, July 07, 2005 3:45 PM
> > > > > To: Law & Religion issues for Law Academics
> > > > > Subject:! Re: Government displays protesting against the
> > > > > SupremeCourt's Establishment Clause jurisprudence
> > > > >
> > > > >
> > > > > ----- Original Message -----
> > > > > From: "Steve Klemetti" <[EMAIL PROTECTED]>
> > > > > > I don't think it would be because it sounds treasonous or
> > > > something
> > > > > > like
> > > > > > that. When one
> > > > > > governing body goes against the orders of a higher court,
> > > > > then that first
> > > > > > body is violating
> > > > > > the constitution by that action. If the people or these
> > > > > government bodies
> > > > > > want to add religious
> > > > > > symbols, they can amend the constitution to allow it,> > > not defy the
> > > > > > interpretation of it by the body that the constitution
> > > designates.
> > > > >
> > > > > Under the criteria you are setting forth, any government that
> > > > > assisted escaping slaves post-Dred Scott was guilty
> of treason or
> > > > > something like it.
> > > > > After all, to paraphrase what you have said, "If the people
> > > > or these
> > > > > government bodies want to aid escaping slaves, they can amend
> > > > > the constitution to allow it, not the defy the
> interpretation of
> > > > > it by the body that the constitution designates." It
> might well
> > > > > be illegal, and they might
> > > > > engage in it as an act of civil disobedience (which has a
> > > ! > > long history) but
> > > > > it can hardly qualify as anything akin to treason.
> > > > >
> > > > > Brad Pardee
> > > > >
> > > > > _______________________________________________
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