Good points, Eugene. See my responses below.
Alan Brownstein
UC Davis
At 09:52 AM 8/22/2005 -0700, you wrote:
I think Alan is right that it's sometimes important to decide
whether a government action was motivated by the race, religion, sex,
etc. of the people who are likely to be affected by it. But I think
this is a more manageable, and more justifiable, inquiry than one into
the religious motivations of the actors.
Consider as an analogy Title VII. Title VII bars you from
treating employees differently based on their religion. There are
obvious difficulties applying this rule, but there it is.
Would it be equally difficult, less difficult, or more difficult
to apply a rule that bars you from treating employees differently based
on *your* religion? Under such a rule, for instance, you would be free
to fire employees because they committed adultery and you think (1)
adulterers tend to be dishonest, or (2) adultery is immoral because it's
a breach of an important contract and you don't want to work with people
who do that. But you would be barred from firing employees if your
primary purpose was advancing your *religious* belief that adultery is
bad.
[Yes. It is more difficult. But that difficulty can be exaggerated. What it
means in practical terms is that it is relatively rare that
plaintiffs can make an adequate showing to succeed in their claims. Most of
the time, the application of the rule breaks down this way.
If we are talking about religiously motivated action that reflects some
more or ethical principle, the state action is upheld against an
Establishment Clause
challenge. There is almost always a secular explanation for the state's
action, and unless the state explicitly describes what it is doing as
serving an impermissible religious purpose, plaintiffs will lose their case.
If we are talking about state action that is intrinsically religious,
prayer, worship services etc., plaintiffs win, either because the state
action blatantly serves a religious purpose
or because it is unconstitutional because of its effect of advancing
religion, or both.
There are a few tough cases. The debate over evolution and intelligent
design is one of them because it does not fit into either
of the more common contexts -- morality based action or prayer, worship
related actions. ]
I think such a rule would be substantially harder to apply.
First, people who have the religious purpose often also have the other
purposes -- they may honestly think that adultery is against their
religion and against their nonreligious morality (to the extent they
have a nonreligious morality) and also a sign of other character defects
(since religious people often do think that violation of religious law
is a sign of other character defects). Second, the rule would have to
be one of "primary purpose." Even if promoting your religious beliefs
is a but-for cause of your actions, or a substantial contributing factor
to your actions, you'd still be off the hook (as you must be, unless we
want to impose really huge burdens on religious employers) if promoting
your religious beliefs was only a secondary purpose and not a primary
purpose. How can we figure that out?
That's a problem, but it certainly isn't unique to the Establishment Clause
inquiry. Lots of laws disproportionately impact racial minorities. If they
are invidiously motivated, they are unconstitutional under accepted EPC
doctrine. If they are intended to serve legitimate state interests, they
are valid. It is quite common for a law to be susceptible to both motives.
A land use regulation may reduce density and serve legitimate environmental
goals and it may also make it more difficult for racial minorities to move
to a community. It is hard to know what the city's primary purpose was in
enacting the law. But the difficulty in determining legislative motive or
purpose in these situations has not been taken as a sufficient reason to
change the constitutional rule. Nor have we changed the rule because it is
so hard for the plaintiff to successfully prove his case. The consensus
seems to be that the few times, plaintiffs win are worth the cost of
application. Or, perhaps more likely, the rule serves prophylactic
purposes. Without it, general laws could be openly enacted for the purpose
of disproportionately burdening racial minorities. Both of these
justifications might apply to the Establishment clause as well.
(Under the current Title VII rule, it doesn't matter what your
underlying motivation is, so long as you deliberately treat people
differently because of their religion. "I have nothing against Mormons,
but my customers don't like Mormons, so I won't hire Mormons" is no
defense, even though my purposes have nothing to do with my religion.
The rule thus avoids having to disentangle a purpose of hurting a group,
a purpose of placating customers, a purpose of advancing business by
using group membership as a proxy for other attributes, and so on.)
I realize that the Establishment Clause and Title VII aren't the
same, and one can argue that the Establishment Clause should be
understood as barring primarily religiously motivated actions. It just
seems to me that the difficulties of such an interpretation -- as
illustrated in my Edwards/Epperson hypo -- are large enough to justify
rejecting it.
I don't think you can only look at the difficulties of the interpretation.
I think you also have to look at the consequences of not allowing a claim
to go forward on the basis of impermissible motive, as well as the
availability of some other standard or analysis to enforce the
constitutional principle. On balance, I think there are circumstances where
the utility of the rule outweighs its problems. All motive inquiries raise
difficult application issues. We have to do the cost/benefit analysis for
each one.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of A.E.
> Brownstein
> Sent: Sunday, August 21, 2005 5:41 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Secular purpose and teaching ID (or not teaching
> evolution)
>
>
> No one ever suggested that purpose analysis would be easy or
> even that it
> is preferable to grounding constitutional decisions on the
> effect or the
> facial content of laws. We use purpose analysis because
> purpose matters
> (that is, it is related to the normative principles of
> constitutional law)
> and because we get bad results if we do not employ it.
>
> With regard to my first point, I think there is such a thing as an
> unconstitutional purpose. Government can do things for impermissible
> reasons. I assume Eugene agrees with this. The school board
> that has to lay
> off teachers because of budget constraints can not choose
> the teachers who
> will be laid off because they are African-American or Jewish or a
> Republican. It would be very difficult to challenge such a
> decision on
> equal protection, free speech or Establishment clause grounds
> based on the
> effect of the Board's action. So we need to look at purpose at least
> sometimes. (One could use Eugene's hypos to see if they would
> convince us
> otherwise. Some board members are worried that the school is losing
> community support because there are so many new
> African-American teachers.
> The board members have nothing against black teachers. They
> just want the
> school bonds to pass. Others sincerely believe that African-American
> teachers or Moslem teachers are not as competent as teachers
> of other races
> or religions or think that they serve as bad role models. In
> the minds of
> these board members, they are just basing their decision
> (incorrectly, of
> course) on competence. Or having a teachers who publicly supports
> conservative political positions is a political distraction
> for a school
> board in a liberal college town; they don't renew his
> contract just to put
> this distraction behind them).
>
> Is a purpose analysis necessary to further Establishment Clause goals.
>
> Well I'm not sure how a court can evaluate the decision not to teach
> evolution or anything else for that matter under an effects
> test. If I'm
> right about that, than one consequence of Eugene's approach
> is that it is
> never unconstitutional for a school board to use theology as
> a veto over
> the content of the school curriculum.
>
> The other problem with an effects test is that it may even be
> harder for
> courts to apply than a purpose analysis. Religious music and
> art may have a
> religion endorsing effect. History can reinforce religious
> beliefs. I'm not
> sure that it is harder for a court to determine when the purpose of
> including materials with religious content is
> unconstitutional than it is
> to determine when the effect of including those materials in
> the curriculum
> violates constitutional requirements. For some classes (art
> history classes
> for example), the study of material with religious themes
> much more clearly
> serves non-religious purposes than is true of other classes.
> That kind of
> an inquiry may be more manageable for courts, and more resonant with
> constitutional concerns, than an effects test. Indeed,
> purpose and effect
> can merge in some of these cases. Purpose can influence the
> effect of a
> decision. Allowing courts to consider both factors may give
> them a more
> accurate picture of what is going on and how it should be
> evaluated for
> constitutional purposes.
>
> Alan Brownstein
> UC Davis
>
>
> At 04:10 PM 8/21/2005 -0700, you wrote:
> > Say that some (unknown) number of legislators wants
> ID taught
> >(or, if we're dealing with Epperson, evolution not taught), because
> >they want to promote the theory that man was divinely created.
> >
> > Some unknown number of legislators is concerned that public
> >schools are losing community support because they're seen (rightly or
> >wrongly) as hostile to the religious views of most parents. As a
> >result, school bond measures aren't passing. Other sources
> of funding
> >are also getting harder to get. Some parents who can afford it are
> >pulling their kids out of the public schools. Some of the remaining
> >parents have been less likely to volunteer at the schools.
> Some other
> >parents teach their kids to disregard what their teachers tell them
> >about evolution, which is undermining the teachers'
> authority. "This
> >whole evolution debate is just getting to be a huge political
> >distraction from making the schools run better as to a wide range of
> >subjects," they conclude. "Let's just do something to make parents
> >feel better about their schools." The legislators, being
> pragmatists
> >(whether or not you think they're wrongheaded on the
> pragmatic point),
> >therefore vote to have ID be taught (or evolution not taught).
> >
> > Some other unknown number of legislators are genuinely
> >unpersuaded by evolution, because they find it intuitively
> implausible
> >that such a complex system would evolve with no intelligent
> guidance.
> >Let's even stipulate that they're mistaken as a scientific
> matter, but
> >they are sincere. Their purpose therefore flows not from their
> >religiosity -- they may have few religious preconceptions --
> but from
> >their secular evaluation (perhaps a completely wrong one) of
> the theory
> >of evolution. (Cf. Scalia's Aguillard dissent.)
> >
> > Some other unknown number of legislators genuinely
> sympathize
> >with parents who are upset by teachings that they see (rightly or
> >wrong) as disapproving of their religion. The legislators
> believe that
> >such disapproval is unconstitutional or at least improper, at least
> >absent a very good reason, and they don't think there is such a good
> >reason here. They therefore prohibit the teaching of evolution or
> >mandate the teaching of ID to make the parents feel better.
> (Cf. again
> >Scalia's Aguillard dissent.)
> >
> > Some unknown number of legislators fit in more than one of
> >these categories, and honestly can't tell you which purpose is
> >"predominant" in their minds.
> >
> > How do courts decide whether the predominant purpose was to
> >advance religion, to help raise public support for the schools, to
> >prevent students from being misinformed (in the legislators' since
> >view, whether or not it is correct), or prevent parents from feeling
> >that their religion is being disapproved of? Even if ID teaching is
> >unconstitutional -- perhaps on the grounds that its effect is to
> >endorse religion -- should the unconstitutionality really turn on
> >courts' attempts at disentangling these possible purposes?
> >
> > Eugene _______________________________________________
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>
> _______________________________________________
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>
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_______________________________________________
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_______________________________________________
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