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Monday, June 27, 2005
More on Justice Breyer, Partly on Divisiveness
Ten Commandments | Posted by Thomas Berg at 08:06 AM
Having seen so many times in which the concept of "political and social divisiveness" has been used as a conversation-stopper against religious participation in public life -- from Lemon v. Kurtzman's "political entanglement" prong to ordinary comments like "why does X have to spout his beliefs and be so divisive?" -- I'm happy to see a non-conservative justice like Breyer actually recognize how empirically uncertain it is whether a strict separationist Establishment Clause increases or decreases religious divisions in society as compared with some lesser, but still non-trivial, degree of separation.
The real question is not empirical, but rather whether "divisiveness" should be a criterion in itself. One problem with it is the one others have identified: "divisiveness" only assesses people's responses, not whether they are justifiable or not. Are the opponents of 10 Commandments displays justified in being angry because the display unnecessarily favors the religious views of some citizens and leaves out the deeply held views of others? Or are the supporters of displays justified in being angry because their underlying values get left out if the government can't express any religious values? To decide that, we need a principle about the proper bounds between church and state, and mere the fact of divisiveness one way or the other doesn't help.
The second problem -- which may not be applicable to this case -- is that, as Rick points out, free religious activity in a pluralistic society will create divisions and controversy. Certainly there has to be a strong "state versus private action" distinction here: if state-created religious division is impermissible, division that results from the free speech and activity of religious individuals and groups should typically be protected rather than suppressed. My own view is that Justice Breyer and the other dissenters in Zelman, in voting to prohibit school-choice funding programs based on their potential for divisiveness, were voting to use the Establishment Clause to discourage religious diversity in educational options. But I digress ....
I'm a bit surprised that Breyer didn't use the endorsement test or something like it in Van Orden to differentiate between the two displays. He could have done so, since most of his analysis is consistent with that test (distinguishing, in a fact-specific way, the promotion of the religious view from the acknowledgment of religious roots of a cultural/moral idea). Instead, he rejects any the use of any single test -- not only for the Establishment Clause as a whole, but even for the sub-class of cases involving non-coercive religious symbols. I am glad that the first among his "basic purposes" is "the fullest possible scope of religious liberty and tolerance for all." Id. at 1 (citing Justice Goldberg's concurrence in Abington School Dist. v. Schempp). Because I am one who writes and litigates for a view of the Religion Clauses that emphasizes respecting the religious choices of individuals and groups rather than strictly separating church and state, I have always liked Goldberg's opinion with its recognition that pure neutrality or separation can create "a passive, or even active, hostility to the religious." Schempp, 374 U.S. at 306. But even though the basic goal is good, I don't think that just stating it at this level of generality gives much guidance for future cases.
Tom Berg
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