The city and Justice Scalia can say the city didn't mean to endorse what it
posted on the monument, and so can Humpty Dumpty, but that doesn't make it
plausible. Governments say something like Mark's explanation in well curated
museum displays, which can put a religious symbol or incident or text in
historical or other context, talk about who believes it and who doesn't, and
talk about different versions. And when that happens, no one files lawsuits.
The kinds of displays that draw lawsuits do none of these things. They simply
post a sacred text. There is no other message. The only thing a reader can
think is that the city is promulgating this text -- this text and not some
other text or some other version of this text -- as true and as especially
worthy of calling to public attention. That is what we all mean when we post a
sign with a message -- we believe what the sign says and we want to publicize
it.
Cities never post religious displays that say this text is important to certain
faiths who are represented in the community, and that even within those faiths,
there are several versions and many interpretations, and a fortiori the display
never says that the text is irrelevant or false to other groups within the
community, who may be smaller in numbers but are also citizens entitled to
equal respect. And except for Jersey City I think it was, which tried to do a
display for every religious group it could identify, there are never displays
for nonbelievers and rarely displays for any religion except Christianity, and
in the larger cities, Judaism.
In the cases where the display is accompanied by some explanatory material,
that material says things that are patently false and disingenuous, like
McCreary County's claim that American law is derived from the Ten Commandments
and that this is especially clear in the Declaration of Independence!
Explanations that the city meant something other than the straightforward
endorsement of the posted text cannot depend on mental reservations or crossed
fingers; they have to be plainly stated. And these explanations cannot depend
on transparent propaganda written by politicians or other amateurs. Government
promulgation of sacred texts is so prone to choosing true and false versions of
religion that it needs to be handled with special care, and any explanation
needs to be independent of the truth claims of different faiths and of
different groups within each faith.
Quoting "Scarberry, Mark" <[email protected]>:
> I think Justice Scalia would say that adopting a Ten Commandments
> monument as govt speech is not a statement that the version of the Ten
> Commandments on the monument is religiously authoritative or is somehow
> the correct version. If asked, the City would say that this is one of
> several versions, none of which is viewed by the City as the
> authoritative version. In fact, the City would take the position that
> the adoption of the monument was not even intended to say that the Ten
> Commandments themselves (in any version) were authoritative, but only to
> recognize that they are important in our history and culture.
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
>
> ________________________________
>
> From: [email protected]
> [mailto:[email protected]] On Behalf Of Christopher
> Lund
> Sent: Monday, March 30, 2009 1:48 PM
> To: Law & Religion issues for Law Academics; [email protected]
> Subject: RE: Using religion for government purposes
>
>
> Professor Brownstein earlier wrote:
>
> "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."
>
> A freak coincidence - just after having read this, I was reading Justice
> Scalia's dissent in McCreary County for class. There he says he would
> allow government to support religion in general, and he dismisses the
> idea that this would result in the government favoring one religion over
> another. This is the passage that struck me:
>
> "This is not to say that a display of the Ten Commandments could never
> constitute an impermissible endorsement of a particular religious view.
> The Establishment Clause would prohibit, for example, governmental
> endorsement of a particular version of the Decalogue as authoritative."
>
> Nothing has devastated this logic more than Summum itself, right? And
> what keeps striking me is that (1) this impeachment came only four years
> after McCreary County, and (2) even someone as amazingly intelligent and
> prescient as Justice Scalia didn't see it coming. I guess I'm saying
> that I think the dangers Professor Brownstein talks about below are very
> hard to see coming. Until they do.
>
>
> ______________________
> 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)
> Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402[1]
>
>>>> [email protected] 3/29/2009 4:28 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
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>>
>> Please note that messages sent to this large list cannot be viewed as
> private.
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>> 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[3]
>>
>> 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[4]
>
> Please note that messages sent to this large list cannot be viewed as
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> 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[5]
>
> Please note that messages sent to this large list cannot be viewed as
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> 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
Links:
------
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[5] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw_______________________________________________
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