Although the public schools no longer try to make Protestants of Catholics, many people of faith believe today that the effect of strictly secular schools is to convert all children of faith into secularists. Mike McConnell once put it this way:"A secular education does not necessarily produce atheists, but it produces young adults who inevitably think of religion as extraneous to the real world of intellectual inquiry, if they think of religion at all."
One of the reasons I support school choice is because I don't believe public schools should be trying to convert any child away from the faith of his or her family. When students see all sorts of secular celebrations permitted in the school, and all sorts of secular views taught in the classroom, but absolutely no religious celebrations or religious ideas coming in as part of the school experience, they are indeed likely to think that religion is not worth recognizing and not worth thinking about. Let's put religious holidays aside for a moment and think about a public school--maybe one your children attend--in which the GLBT Allies group convinces a friendly teacher to put up a display celebrating Gay Pride Month. Now assume some conservative Christian parents (some of you might call them "Fundamentalists") complain to the principal or the school board about the Gay Pride Display. The teacher is told to remove the display from his classroom. Do you believe that the GLBT students are being censored, being deprived of the right to enjoy the Gay Pride Display? Indeed, I bet many law profs would argue that it is unconstitutional for school authorities to order the teacher to remove the Gay Pride Display. I can just hear all the Pico arguments about the "right to receive speech" being polished up for use in the case. What would you call the complaining families? Champions of liberty? Or fundamentalist censors trying to impose their narrow views on the teacher and students who wish to enjoy the Gay Pride Display? The way many of you think about the Christian Hecklers is the way many religious people think about the ACLU when it sues to censor a Nativity Display in a school or park. Whatever Madison may or may not have thought about public religion in Virginia, the EC was not designed to permit federal judges to dictate what holidays local public schools may recognize. Indeed, the EC is really about federalism, about protecting state and local autonomy respecting religion from Congressional interference. The incorporated EC is a disaster, because a provision designed to protect state autonomy has become one which usurps local control Issues like the curriculum and interior decorating of public schools are best left to local officials. I trust my neighbors and my community much more than I trust the federal judiciary to draw these difficult lines appropriately. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote."--Ben Franklin (perhaps misattributed, but still worthy of Franklin) "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id. --- On Sun, 3/29/09, Brownstein, Alan <[email protected]> wrote: From: Brownstein, Alan <[email protected]> Subject: RE: Using religion for government purposes To: "Law & Religion issues for Law Academics" <[email protected]> Date: Sunday, March 29, 2009, 2:28 PM I think Eugene may have read more into my comment than I intended (probably my fault for not being more clear and trying to get away with too brief a comment). I think it is problematic to argue that our government is "identified with a particular conception of God." There are strong arguments based on history, evolving cultural commitments, and constitutional case law to support the argument that government should not identify itself with, and use the resources of government to promote, a particular religious faith. There are arguments on the other side as well -- but I think the direction of law and history has been toward inclusivity rather than preferentialism. Clearly some kinds of traditionally accepted preferentialism are no longer acceptable. Government does not fund missionaries to convert Native Americans today and it does not use the public schools to promote Protestantism over Catholicism. In the past, American culture and law has been able to increasingly advance an inclusive understanding of religious liberty and equality without rejecting some broadly stated public commitment to religion. As our society has become more diverse, however, this has become increasingly more difficult to do. Hence, the degree of constitutional conflict over this issue. I suspect we are going to see some very hard cases in the future. If the constitutional constraints on government displays of religious messages weaken, most decision makers, I suspect, will accept displays from many of the popularly recognized faiths in our society. Having done so, however, that will make the rejection of less popular and recognized faiths all the more glaring. It will be increasingly difficult to characterize government decisions in those cases as anything other than the rejection of particular religions. That's problematic to me (and it is, I believe subject to constitutional challenge) -- but it seems to me to be the inevitable consequence of permitting government to identify and align itself "with a particular conception of God." Alan Brownstein ________________________________________ From: [email protected] [[email protected]] On Behalf Of Volokh, Eugene [[email protected]] Sent: Saturday, March 28, 2009 9:29 PM To: Law & Religion issues for Law Academics Subject: RE: Using religion for government purposes I agree with Alan at a general level. Among other things, I think his observations, like mine, help show that it's problematic to say that "our government is supposed to be 'under God,' not one with God, or identified with a particular conception of God. Totalitarian states co-opt God, and loyalty to God, for their own purposes; the Establishment Clause forbids that in the U.S." Forbids on what authority? And supposed to by whom? Eugene > -----Original Message----- > From: [email protected] [mailto:religionlaw- > [email protected]] On Behalf Of Brownstein, Alan > Sent: Friday, March 27, 2009 10:29 AM > To: Law & Religion issues for Law Academics > Subject: RE: Using religion for government purposes > > I think that Eugene's mention of the fact that the government's accepted use of > religion occurred at a "pretty ecumenical level" has to carry a lot of weight here. > It's not that there weren't countervailing cultural, political, and legal aspects of our > history. Certainly, contempt for Native American faiths, anti-Semitism, anti- > Mormonism and anti-Catholicism are a part of our heritage. But our constitutional > culture had a strong foundation in inclusive and non-preferential church-state > relationships and has increasingly evolved toward increased inclusivity. Today, > given the diversity of beliefs in our society, these parallel themes of inclusivity > and anti-preferentialism on the one hand and some limited use of religion by > government on the other are increasingly difficult to reconcile. > > Alan Brownstein > ________________________________________ > From: [email protected] [[email protected]] > On Behalf Of Volokh, Eugene [[email protected]] > Sent: Friday, March 27, 2009 8:51 AM > To: Law & Religion issues for Law Academics > Subject: Using religion for government purposes > > Chip Lupu writes: > > > Second, our government is supposed to > > be "under God," not one with God, or identified with a particular > conception of God. > > Totalitarian states co-opt God, and loyalty to God, for their own > purposes; the > > Establishment Clause forbids that in the U.S. > > I wonder where the "supposed to" comes from. As I understand > it, throughout much of history it was understood that the government was > supposed to use religion -- at least at a pretty broad level -- for its > own purposes. That seems pretty clear in the invocations of God in the > first and last paragraphs of the Declaration of Independence and nearly > all state constitutional preambles. It also seems to be pointed to by > the Northwest Ordinance ("Religion, morality, and knowledge, being > necessary to good government and the happiness of mankind, schools and > the means of education shall forever be encouraged") and other legal > rules. > > To be sure, there was long the understanding that there should > be limits on this (though for a long time they were exclusively > prudential political limits rather than judicially enforceable ones), > and in particular that co-opting loyalty to God works best when one puts > it at a pretty ecumenical level. But the notion that people's > religiosity -- and God talk more broadly -- can legitimately be used as > a government tool seems to have been pretty broadly accepted throughout > most of American history. And I take it that it's still accepted pretty > broadly by many Americans. > > Now maybe the "is supposed to" refers not to original meaning or > tradition or current consensus, but the judgment (perhaps the correct > judgment) of some influential groups within modern legal elites. But I > think it would require more defense than just the historical-sounding > "is supposed to." > > As to totalitarianism, some totalitarian states (e.g., Iran) > co-opt loyalty to God, others (e.g., the USSR and other Communist > countries) rejected it, and for others (e.g., Nazi Germany) it seems not > to have played much of a role. Likewise, some non-totalitarian states > (e.g., the U.S.) have historically co-opted loyalty to God, at least in > a relatively ecumenical way. So I'm not sure that history at that level > of abstraction tells us much. > > Eugene > _______________________________________________ > 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. > > _______________________________________________ > 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. _______________________________________________ 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. _______________________________________________ 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.
_______________________________________________ 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.
