But the battles over secondary questions, as best I can tell,
tend to be quite low-profile. A few people care fairly deeply; most
don't. What's more, the battles happen in relatively few places. A
Supreme Court decision invalidating legislative prayer everywhere in the
country, notwithstanding the tradition going back to the First Congress,
would become notorious and would continue to be notorious -- like the
school prayer decision, but probably more so, because the contradiction
with the revealed views of the Framers would be even stronger. Like a
decision striking down the Pledge of Allegiance, it would become an
emblem of the culture wars, and something that I suspect would
substantially exacerbate those culture wars.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Christopher Lund
> Sent: Friday, July 25, 2008 10:26 AM
> To: Volokh, Eugene; religionlaw@lists.ucla.edu
> Subject: Re: "Political divisions along religious lines"
>
> I agree with this, but your account only talks about the
> divisions caused by the first decision. Striking down
> legislative prayer would indeed be controversial, more so
> than approving it. I think that may be part of why Marsh
> took the road it did.
>
> But, as we've seen, approving legislative prayer means having
> real battles over secondary questions -- over who will get to
> pray and what they will get to say. Those are nasty fights.
> To me, they are the most perfect proof that the holding of
> Marsh was dead wrong. For they demonstrate, don't they, that
> whether or not legislative prayer is considered a religious
> establishment by the Court, the people surely view it that
> way. For whatever else, legislative prayer certainly bears
> that central hallmark of religious establishments -- the
> willingness to fight tooth and nail for control of it.
>
>
> Christopher C. Lund
> Assistant Professor of Law
> Mississippi College School of Law
> 151 E. Griffith St.
> Jackson, MS 39201
> (601) 925-7141 (office)
> (601) 925-7113 (fax)
> >>> [EMAIL PROTECTED] 07/25/08 11:34 AM >>>
> If the Establishment Clause was indeed supposed to
> prevent "political divisions along religious lines," what do
> we think would cause more such divisions -- legislative
> prayer allowed under Marsh (which irks many law professors,
> but likely a small minority of conservative Christians and a
> small minority of atheists, agnostics, and members of
> minority non-Christian religions) or the dissent's position
> in Marsh? Acceptance of the Pledge of Allegiance with "under
> God," or a Court decision striking down the Pledge?
>
> My sense is that on balance the Court's Establishment
> Clause government speech jurisprudence has caused much more
> political divisions along religious lines than it has
> prevented -- but the Brennan/Marshall/Stevens view would have
> caused vastly more such divisions. Now perhaps that
> shouldn't matter, because we should let justice be done
> (assuming that justice somehow demands an end to religious
> speech by the government, a theory that strikes me as
> unproven) though the heavens fall. But if the goal of the
> Establishment Clause is indeed to prevent political divisions
> along religious lines, it seems to me that Scalia et al.
> would accomplish that best (at least in their views of
> government speech), O'Connor's and Breyer's views are a weak
> second, and the Brennan/Marshall/Stevens is what would be an
> "utter[] fail[ure]."
>
> Eugene
>
>
> Chris Lund writes:
>
> > "That kind of jockeying for government recognition of particular
> > denominations-- or for an implicit government statement rejecting
> > supposed antireligious views-- seems to be just the kind of
> political
> > divisions along religious lines that the Establishment Clause was
> > supposed to prevent."
> >
> > Yes indeed to Professor Friedman's statement, and (I would
> > add) it's also the sort of divisions that Marsh itself was
> trying to
> > prevent. I tend to see Marsh as an earlier Van Orden -- government
> > gets to act religiously, but not too much. Breyer says in
> Van Orden
> > that upholding the momument (not striking it down) is the
> best way to
> > avoid "religiously based divisiveness." I bet Marsh court had a
> > thought or two along those lines -- that the best way to keep the
> > peace was by approving legislative prayer with some (what
> it thought
> > to be modest) strings attached.
> >
> > Can we all agree that Marsh has utterly failed in this regard?
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