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Monday, June 27, 2005
Importance (Not!) of Religious Symbols Cases
Ten Commandments | Posted by Thomas Berg at 02:39 PM
Thanks to the SCOTUS blog for setting up this discussion and inviting me to participate.
I have mixed feelings about the idea, floated by Ann Althouse and Burt Neuborne, of liberals relinquishing the fight in religious symbols cases. (Going along with this ambivalence, I have no dog in the 10 Commandments case and was not involved in any brief.) As someone who often litigates on behalf of religious organizations and persons trying to bring their beliefs to bear on public life, I welcome a softening of strict church-state separation: a movement away from separation as mandating a secular public square and toward a focus on whether religious liberty is preserved and advanced. Moreover, as someone who holds "liberal" positions on a number of issues such as economic policy, international relations, etc., I would like to see those positions revitalized in middle America -- a development that may well require that liberals stop alienating middle America on other issues such as official religious symbols when the symbols involve no real coercion against anyone.
But as a proponent of broad religious freedom, I do not want to see government expression of religious positions expand, even when the expression is non-coercive. This is partly because the freedom of minority religious views, those who dissent from the government's favored view, can be threatened in many subtle ways. But it is also because government expression of a favored religious view threatens the vitality of an independent religious sector. As my fellow religious-liberty scholar and litigator Carl Esbeck wrote recently in Liberty magazine: "That government has no authority to speak on inherently religious matters is a venerable First Amendment rule designed to protect organized religion-religion that should not want its prayers composed and symbols appropriated by Caesar. A religion that does not resist the state co-opting its sacred objects is flirting dangerously with becoming a civil religion, that is, a subordinate and uncritical booster of American nationalism."
From the standpoint of the real vitality of religious communities in American civil society, I think that issues like the posting of the 10 Commandments pale in importance compared with other major Religion Clause issues:
(1) Whether government has the duty (and at least the power) to accommodate sincere religious conduct when it comes in conflict with law, by exempting that conduct from the law (subject to overriding social needs).
(2) Whether religious schools and social service agencies, who provide beneficial services to society, should be able to participate in programs of government funding paying for those services, without giving up their ability to define their mission, hire employees committed to that mission, and so forth.
Both of these issues are very important to ensuring that religious organizations themselves remain free to pursue their vision -- including contributing to civil society -- without pressure or discouragement from the active modern state. But in religious symbols cases, the state chooses the vision and does not protect or empower independent religious organizations in their efforts. Official religious symbols, therefore, should be at most a low priority for religious believers, and at worst they tempt them away from more important goals. Religious parents who want a religious component in their children's education settle for trying to get a few scraps of prayer at public school graduation, rather than trying to end the government discrimination in funding that pressures them to choose the (state-funded) public school over a seriously religious private school.
Tom Berg
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