Eugene has been criticizing arguments, including some of mine, without offering any affirmative account of his own as to whether the Constitution imposes any limits on government religious speech. Let me offer a few more comments, and then put the matter back to him:
1. I never suggested that "divisiveness" is a useful test. It's not. For reasons to which Doug alludes, it is a justification for some restrictions, but it's much stronger in some cases (sectarian legislative prayer; the cross on the roof of City Hall) than others (school vouchers that can be used at any private school). It was not strong either way (as a reason for courts to remove the monument, or as a reason for courts to refuse to remove the monument)in Van Orden. 2. My reference to totalitarianism was not meant to equate Chanukah menorahs on City Hall lawn with the repressive practices of Nazi Germany or Soviet Russia. It was meant to suggest a theory of the penultimacy of the American state. Totalitarian states co-opt or outlaw religion because they seek to establish the state as an object of veneration or worship; curbing that tendency should be an aim of Establishment Clause jurisprudence (as John Ely once wisely wrote, the Establishment Clause is a separation of powers provision). 3. That governments frequently ignore the Madisonian injunction not to use religion as an instrument of social policy doesn't make such a practice normatively acceptable. Governments frequently try to repress dissent, too. Any such instrumental use is bound to produce religious favoritism. 4. No one has yet formulated a good and simple "test" in this area. The "no-endorsement test" is a failure because it asks the wrong question (i.e., who might be made to feel excluded and why), because it is infinitely manipulable, because the qualities of the "reasonable observer" are doing all the work, and because the back and forth among O'Connor, Blackmun, and Brennan with respect to the Christmas tree, the Chanukah menorah, and the peace sign in Allegheny County made the whole enterprise into a bad joke. 5. My own view (talking and writing with Bob Tuttle has helped me greatly on this, but this post is entirely my own)) is that religious speech by government should be limited to 1) accommodation of the needs of those under substantial government control (e.g., prisoners, members of armed forces); 2) ceremonial acknowledgments (e.g., God save this Honorable Court), which to preserve their ceremonial character should be as non-sectarian as possible; and 3) historical acknowledgments (names of cities, perhaps others as well). Cultural acknowledgments (Merry Christmas!) are on the borderline, because they can shade into what I would definitely rule out -- government-sponsored veneration of a deity, and government assertions of theological truths. Those kinds of statements do tend to be the most inclined to involve the state in religious conflict (and therefore to be divisive), to make the state a partner in ultimate claims, and to "establish" an official faith. So the permanent cross on the roof of City Hall is a very easy case for me, because it cannot be explained in our culture as anything but a veneration of Christianity and/or a symbolic proclamation of Christian truth and authority. How about for you, Eugene? Are you with Rick Duncan in saying that decisions about governmental sponsorship of such a symbol should be left to local politics? Or, if you think such a cross is not constitutionally acceptable, what "test" are you applying? Chip ---- Original message ---- >Date: Sun, 29 Mar 2009 16:09:56 -0700 >From: "Volokh, Eugene" <[email protected]> >Subject: RE: Using religion for government purposes >To: "Law & Religion issues for Law Academics" <[email protected]> > > As I understand it, throughout American history the government >has repeatedly, in a vast range of contexts, invoked a particular >conception of God -- one God, who created the world, who sets a moral >code for us, who judges us ("the Supreme Judge of the world"), and who >may protect us in certain situations ("a firm reliance on the protection >of Divine Providence"). This is a pretty broadly ecumenical conception >of God, but it is still one view of God. So I don't really see how >history supports rejection of the continued use of this conception in >government speech. > > Likewise, while there is some strand of constitutional case law >that would condemn every government reference to that conception of God, >the case law is pretty clear deeply mixed, with the bottom line >supporting the constitutionality of at least some such reliance (see >Marsh and Van Orden). So I'm not sure that arguments based on >constitutional case law on balance support rejection of the continued >use of this conception in government speech. > > Finally, while there has been an evolving cultural commitment in >favor of religious inclusivity, my sense is that the acceptance of >government invocation of God in the way I describe still has wide >adherence in virtually all aspects of American culture except the >subculture of the academic and legal elites. So I don't really see how >evolving cultural commitments will do the work that history and case law >won't. > > Now to be sure there are eminently plausible arguments why a >rule barring all government religious speech (with some hazy exception >or limitation related to religious speech of sufficient historical >significance, ranging from the text of Founding documents to the names >of our cities) would be morally or practically superior. But I don't >think that one can support these arguments with reference to culture or >to history, and one can rely on case law only by pointing to extremely >contested case law that on balance allows a good deal of government >religious speech (except when it doesn't). > > Eugene > >Alan Brownstein writes: > >> 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." >_______________________________________________ >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. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 _______________________________________________ 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.
