RE: Political divisions along religious lines
At 02:32 PM 7/25/08 -0700, you wrote: I think there is a lot of merit in what both Chris and Eugene are saying. It is hard to evaluate the political divisiveness issue without including some kind of temporal reference. It took a moment to realize that you meant with reference to time. On this list especially, the word is like to confuse people used to thinking in terms of temporal vs. spiritual. ___ 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.
RE: Political divisions along religious lines
If Professor Lund said, someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it, then if logically the more powerful half of government gets to dictate and limit the content of religious speech by the lesser half of the government. If that's true, why doesn't the Democrat majority simply outlaw speeches by the Republican minority in Congress? By dictating the acceptable content of religious speech by the Christian minority, the non-sectarian majority causes great jealousy, and the urge to mobilize Christians to vote them out. Like we just did in Baker City, Oregon, here, and below: http://www.persuade.tv/Frenzy13/BakerCityPrayerVictory23Jul08.pdf In Jesus, Chaplain K. Council decides prayers will continue Published: July 23, 2008 By MIKE FERGUSON Baker City Herald The prospect of taking away the prayer that opens many Baker City Council meetings, it turns out, never had a prayer. Speaker after speaker urged city councilors Tuesday to keep the prayer as part of city council meetings and not to refer the matter to voters. In the end, councilors voted unanimously to remove the word non-sectarian from the council's five Invocation Guidelines and determined by consensus not to send the issue to the November ballot. Roger Scovil, pastor of the Baker City Christian Church, said that prayer is important in every aspect of human activity and that certainly includes the human activity of government. Prayer is the sacred opportunity to call upon the creator of all things, the God of the Holy Bible, Scovil said. God establishes all governments, and honors and blesses the governments that look to him for protection. Noting that the U.S. House of Representatives and Senate both open their sessions with prayers, Scovil paraphrased Benjamin Franklin when, he said, a similar debate raged during the founding of the republic: Do we imagine we no longer need God's assistance? You invite people to pray according to their conscience, in the way we are instructed, he said. A Muslim will pray in the name of Allah, a Buddhist according to the teachings of Buddha. I won't feel excluded if you invite people of other beliefs to pray at this meeting. In the name of freedom, Scovil said just before a loud ovation, allow people to pray according to the teachings of their faith and their conscience. Don Williams said he worried that instructing people how to pray would make God generic, a meaningless and uninvited guest to this forum. Even allowing sectarian prayers, he said, shows a broad tolerance of what this country is about. You have been very tolerant of all prayers, and now you're being asked to be intolerant, Williams said. He warned that if councilors give up the practice of opening meetings with prayer, churches would stop entering floats in parades and offering Easter sunrise services in public parks. Bill Harvey, who lives in Haines but owns a Baker City construction business, called it a joy to pray for wisdom, guidance, strength and help. I am human, and I can't make all the decisions on my own, he said. I am sure tonight that many are praying for our city. Gary Dielman, who sparked Tuesday's discussion when he criticized a prayer offered by Bob Vanderbilt to open the July 8 City Council meeting —Vanderbilt closed his prayer with the words In Jesus' name, amen, — did not attend Tuesday's meeting. Dielman declined to comment until he'd heard a tape of Tuesday's meeting. Councilor Terry Schumacher said he hoped Dielman would take the hint from the outpouring of public support for prayer at council meetings and quit coming back and doing this. But Councilor Beverly Calder said that dissent is an American right and quite often represents other unspoken voices. Councilor Andrew Bryan was one of the few who saw the logic of putting a charter change on the ballot to let voters decide whether to include prayer and the reciting of the Pledge of Allegiance on City Council meeting agendas. If we want an invocation and the Pledge, we want to set it on the hardest rock we have, he said. If people really want the invocation and Pledge, the best way to assure that is to put it in the charter. You can put it in the charter or paint it on a wall, countered Councilor Dennis Dorrah. That still won't change Mr. Dielman or someone else coming in here and raising heck about it. At least the issue drew a crowd to Tuesday night's meeting, Calder noted. You came because this matter is important to you, she told the full house. It's nice to have full council chambers. I wish we could have something this meaty at every meeting. ___ To post, send message to
RE: Political divisions along religious lines
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
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.
RE: Political divisions along religious lines
I think there is also a difference between legislative prayer at the State or congressional level and prayer at the city council or school board level. The latter is more up close and personal and has far more coercive implications for citizens (as opposed to legislators). It may be that Marsh is not all that divisive at the state legislative level -- but causes much more of a problem at the local level. Alan Brownstein UC Davis School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher Lund Sent: Friday, July 25, 2008 10:26 AM To: [EMAIL PROTECTED]; 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 ___ 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.
RE: Political divisions along religious lines
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
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
RE: Political divisions along religious lines
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
RE: Political divisions along religious lines
I think there is a lot of merit in what both Chris and Eugene are saying. It is hard to evaluate the political divisiveness issue without including some kind of temporal reference. Restrictions on the exercise of majority prerogatives in the name of minority rights will often produce a substantial reaction at first. But over time that may subside as people's attitudes change. Certainly the school prayer decisions of the 1960's were extremely controversial and divisive, but today they are accepted by many people of all faiths and political dispositions. It is hard to know what the long term reaction to constitutional decisions will be. There is also an issue of external as opposed to internal divisiveness. The civil rights movement and the legislation and constitutional decisions that resulted from it were incredibly divisive and produced a bitter and violent reaction. But I would be hard pressed to describe the Jim Crow regime of racial segregation and subordination as less divisive than the civil rights regime that followed it. (No, I am not equating prayers at city council meetings with racial subordination. The point is that if divisiveness is measured in quantitative terms, there is a sense in which what bothers the majority will always be more divisive than what bothers a minority -- and that while the resentment of the minority may be internalized (for obvious reasons), the fact of internalization says little about magnitude of people's feelings.) Alan Brownstein UC Davis School of Law 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 ___ 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.
RE: Political divisions along religious lines
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
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
