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Monday, June 27, 2005
Divisiveness, Oppression, and the Impossibiity of Principled Opinions
Ten Commandments | Posted by Douglas Laycock at 04:06 PM
Each side has a principle; it is unimaginable that either side would or could enforce its principle absolutely. This is more obvious for the secularists because of where the lines have been drawn over the last generation, but it is true for both.
The Scalia four say government can promote or endorse traditional religion with little in the way of limits. But the odd concession about monotheism instead of Christianity reveals a limit of sorts, even though in practice they plainly mean to uphold monotheism with a Christian sensibility. But they would not let government harangue us with daily e-mails or nightly TV ads in prime time to give our lives to Christ. They haven't said that, but I'm pretty sure it's true. If they were winning more, then at some point they would have to draw a line. The line would be unprincipled, separating differences of degree.
The Souter four want to leave religion to the choices of individuals, families, and churches, and keep government out of our religious business. But they cannot possibly eliminate all government references to religion. They would not change the place names in the southwest, and they would not change the coinage. They too have to draw a line between what they strike down and what they are willing to accept, and that line will be unprincipled, separating differences of degree. Breyer's opinion may well be tactical, but whether tactical or sincere, the line he is trying to draw is inherently messy.
These opinions are in fact divisive. In principle, a rule leaving promotion of religion to the private sector has the potential to be nondivisive, while a rule allowing government to promote religion is inherently divisive. But in the world we live in, given the large fraction of the population determined to use the organs of government to promote their religion, decisions trying to limit that will be divisive.
So are we better off or worse off with this divisiveness than with what we had in the past? Well, that depends on how far back you go. The Protestant establishment of the nineteenth century was oppressive; it was hard for religious minorities to escape prayers and services with Protestant theology and Protestant sensibilities. Alan Brownstein has spoken movingly of how the school prayer decisions made it possible for people like him to leave Jewish enclaves and move to Davis, California or anywhere else in the country.
This oppression ended when courts (and in some places, school boards) began to take religious dissenters seriously as parts of the polity. And the pendulum had to swing a very long ways before oppression of religious minorities was ended. Today's cases are not about oppression; it is indeed possible to just ignore these displays. But especially for conscientious or sensitive members of religious minority groups (by which I mean to include nonbelievers as well as non-Christian faiths), significant imposition begins just short of these cases, as soon as prayer or religious rituals are imposed on an audience assembled for other purposes.
As to which is more divisive, well, that's a matter of who is angriest and willing to make a fuss at any point in time. Right now, that's the cultural right. At times in the nineteenth century, when both sides were willing to go physical, we had mob violence, burned churches, and people dead in the streets. The secular side is not provoking that kind of confrontation today, and they are not likely to. But they should not forfeit their rights for that forbearance.
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