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Thursday, June 30, 2005
Religious Symbols and Funding -- the Feldman/Balkin/Berg/Garnett "Debate"
Ten Commandments | Posted by Marty Lederman at 07:38 AM
In the wake of the Ten Commandments cases, the New York Times Magazine this Sunday is publishing excerpts from Noah Feldman's forthcoming book on the "Church-State problem." One of Feldman's provocative theses is that the Court should be more permissive in the "religious symbolism" cases (a broad category that apparently would include not only things such as the Ten Commandments, creches and the Pledge of Allegiance, but also prayer and teaching creationism in the public schools), even to the point of permitting expressly sectarian endorsement, as long as there is no religious "coercion," but that the Court should reassert what appear to be 1970's-era restrictions on state funds being conveyed to religious institutions. In short: "no coercion, no money."
This is, of course, almost the opposite of the direction the Court has been taking in recent years. It also raises many, many difficult and interesting questions, some of which are pointedly but respectfully posed by Jack Balkin over on Balkinization. Feldman's proposal is also likely to receive a skeptical reaction from folks such as Tom Berg, who in our discussion here and at Mirror on Justice (see also Rick Garnett's new post here) have suggested that religious communities should focus less on the "symbolism" cases (in large part because Tom thinks there is great danger to religion when the state appropriates religious symbols) and more on securing the sort of neutrality in funding that is, for instance, suggested in Justice Thomas's plurality opinion in Mitchell v. Helms. (Current law is governed by Justice O'Connor's controlling concurrence in Mitchell, which prohibits the state from providing direct aid to be used for "specifically religious activities" and religious indoctrination, and which apparently also prohibits any direct monetary aid from being sent to a certain (undefined) category of religious institutions, because (in Justice O'Connor's cryptic words) "this form of aid falls precariously close to the original object of the Establishment Clause's prohibition.")
There is much, much more to be said in this debate. I hope that Noah, Jack, Tom, Rick and others will weigh in here or in the Comments on the main blog (where I'm cross-posting this), and/or on Balkinization and Mirror of Justice.
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