Agreed. My point is simply that wherever the line is drawn, folks on both sides will test the line, and, in terms of Chris Lund's earlier post, "someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it." I'm not sure that moving the line in one direction or the other is likely to alleviate divisive battles and the need, in the end, for the courts to make decisions that will please some folks and embitter others. Perhaps keeping the line somewhere in the middle is best for this particular purpose, but there of course are other considerations as well, maybe more important than this one.
Dan Conkle ******************************************* Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ******************************************* ________________________________ From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Friday, July 25, 2008 5:35 PM To: Law & Religion issues for Law Academics; Christopher Lund Cc: Conkle, Daniel O.; [EMAIL PROTECTED]; 'Law & Religion issues for Law Academics' Subject: RE: "Political divisions along religious lines" Either religious or sacreligious. Either meant to be taken literally and seriously, or meant to invoke God's name in vain. But the Court will never be absolutist about this, and these slogans are in no danger. Quoting Christopher Lund <[EMAIL PROTECTED]>: > Responding to Professor Conkle's post, there certainly are > definitional problems. For me the hardest are the symbol cases * > does the Ten Commandments along with a number of secular displays > really convey a religious message? Doug Laycock's amicus brief in > Van Orden, I think, is the best attempt I've seen to draw that line. > (He says yes.) > > But some of your examples I think are pretty easy. When the > government message either says or must inherently assume that God > exists - that seems like an religious message. That goes for the > Pledge, "In God We Trust" on the coin, and "God Save the United > States." I'm not saying that all should be struck down. The costs > of striking them down might well outweigh the benefits to religious > liberty, especially with the possibility of constitutional > amendments. But that's a separate inquiry * I think they're pretty > clearly religious statements. > > 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] 7/25/2008 3:35 PM >>> > > Chris Lund writes in part as follows: "if the Supreme Court lets > government speak religiously, there is a natural push for people to > want it to speak religiously as much as possible, and in the > particular way they want. Eventually, someone in the government > (whether the courts or otherwise) will have to decide what gets said > and who gets to say it." > > But this is inevitable, isn't it? There will be definitional or > categorization issues regardless of whether a prohibition on the > government "speaking religiously" is construed broadly or more > narrowly. E.g., under a broad prohibition on government religious > speech, what about "In God We Trust" or "God Save the United States"? > Religious speech and therefore invalid? Christmas displays that > include religious symbols along with other symbols? Christmas > displays without such symbols but nonetheless celebrating Christmas? > An invocation--whether or not so designated--that speaks in general > terms about faith and hope but not about God? Would it matter if the > speaker is a member of the clergy? > > Perhaps a broad prohibition would minimize the > definitional/categorization issues, but I'm not entirely sure about > that. > > Dan Conkle > ******************************************* > Daniel O. Conkle > Robert H. McKinney Professor of Law > Indiana University School of Law > Bloomington, Indiana 47405 > (812) 855-4331 > fax (812) 855-0555 > e-mail [EMAIL PROTECTED] > ******************************************* > > > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Christopher > Lund > Sent: Friday, July 25, 2008 4:03 PM > To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu > Subject: RE: "Political divisions along religious lines" > > It's true that the battles over the secondary questions have been > limited (although some, like Hinrichs v. Bosma, have been the source > of some controversy). But part of it may be that nothing has reached > the Supreme Court yet, and so there's no nation-wide, high-profile > definitive rule that people read about in the papers. Say the > Supreme Court takes the case, and holds legislative prayer in Jesus' > name unconstitutional. This would cause a serious culture war > problem too, wouldn't it, maybe on the order of striking down > legislative prayer altogether? Committing it all to the political > branches is the other solution. It would keep the problems and > divisions local and out of the public limelight -- but they will > still exist. Minority listeners attending meetings will still feel > aggrieved; perhaps candidates in local elections would start to run > on prayer-related questions. > > I didn't mean to suggest that striking down legislative prayer was > the least controversial of the Court's options. But I do think that > if the Supreme Court lets government speak religiously, there is a > natural push for people to want it to speak religiously as much as > possible, and in the particular way they want. Eventually, someone > in the government (whether the courts or otherwise) will have to > decide what gets said and who gets to say it. > > And I can't help but think that if we didn't let government speak > religiously, people wouldn't expect it to. Maybe this is utter > foolishness, but I reread Simpson (the case of the Wiccan woman being > excluded from being able to offer a legislative prayer) last week. > Chesterfield County didn't have legislative prayer until 1984, when > in the wake of Marsh, it decided to do so. It was the judicial > ratification of legislative prayer that prompted Chesterfield County > to adopt it. > > Best, > Chris > > 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 1:16 PM >>> > 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? >> _______________________________________________ >> 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. >> >> _______________________________________________ >> 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. >> > _______________________________________________ > 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. > > _______________________________________________ > 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. > _______________________________________________ > 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. > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
_______________________________________________ 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.
