Anthony Decinque writes:
Let's go back to the hypothetical from earlier, the one about the
"anti homosexual" sign versus the "Christians welcome" sign. I thought
that was a strong hypothetical that really hit to the heart of the
issue. Why can the government do A but not B?
The answer, I think, is the one given by Madison. Government might
be able to decide whether homosexuality is bad or good. In reality,
this question seems too tied up in religion and innate response for
government to do very well, but government could take an empirical
(Enlightenment!) approach to the issue.
Turning to religion, however, government doesn't seem to have the
same ability. The framers were standing at the end of centuries of
religious strife that had settled nothing. Instead, there
had just been decades and decades of bloody majority-rule. Religious
questions do not lend themselves to earthly resolution.
I think the framers decided that religious endorsement by
government would never be anything more than thinly-veiled majoritarian
oppression. That's certainly a debatable proposition, but I think it
was a conclusion that was well informed by history.
Based on that conclusion, religion was ruled off limits.
I don't disagree that at least as far as "Congress" is concerned, it has no
business legislating whether a particular religion is good or bad. Of course,
that is a structural limitation on the power of the Federal Govt to act. The
issue for incorporation is how that structural limitation translates into a
liberty interest when it is incorporated under the DPC.
But even if govt has no business acting as a Theocracy and legislating good and
bad religious doctrines and official prayers, it is certainly the business of
govt to adopt policies recognizing that in a pluralistic society many different
groups are welcome in public schools and at city hall. My hypo involving the
respective challenges to a Gay Pride Display and a Nativity Display in a public
school or public park goes to the very essence of state and local governmental
power to embrace diversity and pluralism.
What is the message the law sends to religious families in the public schools
when it ignores their complaints about a Gay Pride Display but forbids a
Christmas Display under the endorsement test? This is not a case of govt taking
an official position on religious truths and religious untruths. It is a case
of govt exercising its clearly legitimate power to recognize that in a
pluralistic society many different groups come together in the public schools
and they are all welcome; and those who are offended must avert their eyes,
because we don't give them a heckler's veto to enjoin the Welcome Wagon.
Under the endorsement test, the message is very different. Those offended by a
display recognizing a religious holiday are empowered to enjoin the welcome
sign.
Doug Laycock is certainly correct that religious students are not completely
silenced, in the sense that they can go home and put up their own nativity
displays in their living rooms. But they are silenced when in school. They must
walk through the halls seeing displays recognizing Gay Pride, and Cinco de
Mayo, and MLK Day, and Earth Day, and (ironically) Diversity Day, but they must
stand by and watch religious displays be torn down at the behest of any
offended member of the community. It is literally a game of heads you win, and
tails we lose. And they know it. And it hurts. And it harms the cause of public
education and community.
I think it was Chip who said I used the term"heckler's veto" because it is a
negative word that scores points without further reasoning. But the term
"heckler's veto" was used in Summum by Justice Alito to describe those who wish
to enjoin govt speech merely because it offends them. Those who attack a Gay
Pride display because it offends them are rightly turned away, because they are
trying to exercise a heckler's veto. The same is true of those who seek to
enjoin Nativity Displays and similar religious displays that offend them. They
are trying to silence their fellow citizens who are a willing audience for the
welcoming message of these displays.
The law treats one group of hecklers one way; and the other group of hecklers
another way. And the message of inequality is clear to religious subgroups who
are part of our pluralistic society.
Cheers, Rick
_______________________________________________
To post, send message to [email protected]
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.
