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Monday, June 27, 2005
The End of Consensus on Prohibiting Sectarian Discrimination
Ten Commandments | Posted by Marty Lederman at 04:09 PM
I'm not at all surprised by the outcomes in these cases (principally for the pragmatic reasons that I think were driving Justice Breyer, which I discussed in my previous post). But I do think that there is one very surprising, and very disturbing, aspect of the opinions.
The only Establishment Clause principle on which there has been any sort of consensus among Justices over the past two generations is sectarian neutrality--that the government may not prefer some denominations to others. As the Souter and Stevens opinions point out, that principle is plainly implicated in these cases. The Rehnquist plurality in van Orden does not even acknowledge the issue. Remarkably, however, Justice Scalia's opinion in McCreary County (which the Chief Justice and Justice Thomas join in pertinent part) expressly advocates abandoning the sect-neutrality principle in cases of government speech. (Justice Scalia professes adherence to the sect-neutrality principle in cases of public aid and free exercise, but he doesn't really offer any persuasive explanation for drawing such distinctions among subsets of Religion Clause cases.)
As Jack Balkin demonstrates in his must-read blog posting, Justice Scalia's bold new non-neutrality stance is premised on the notion that the Constitution permits preferences for the so-called "Judeo-Christian-Islamic" tradition of monotheism. Polytheistic (e.g., Hinduism) and nontheistic (e.g., Buddhism) religions -- not to mention Jews, Christians and Muslims who do not believe in the literal words of the Bible, or who do not believe in the particular version of the Decalogue that the state sanctions -- are flat out of luck. For more on this theme, see Justice Stevens's dissenting opinion in van Orden, which is in my view a tour de force. As Jack Balkin explains, "Justice Scalia's tradition of establishment of monotheism is, like so many other traditions, an invented tradition which he has made up to produce an outcome that he politically prefers. [A]lthough Justice Scalia repeatedly claims that his theory of adherence to text, original understanding and tradition is superior because it constrains judges from imposing their personal views into the Constitution, it does nothing of the sort. This case is a perfect example. Justice Scalia has particular views about religion and about what sorts of government invocations of religion should or should not be regarded as offensive or as marginalizing people with different religious beliefs than his own. These political beliefs produce the outcome he takes in this case."
Jack even wonders why, on Justice Scalia's view, Jews and Muslims must be included in the mix of first class religious citizens: "After all, if you exclude them you still have about 91% of the population. So why couldn't the government offer prayers to Jesus Christ, our Lord and Savior?"
Jack's question is somewhat rhetorical, I suppose, but Justice Thomas takes it quite seriously: In canvassing what he views as the absurd results of the Court's Establishment Clause jurisprudence, Justice Thomas mocks a recent district court decision invalidating the National Park Service's preservation of a memorial cross in the Mojave Desert. "If a cross in the middle of a desert establishes a religion," Justice Thomas writes, "then no religious observance is safe from challenge." As though an official U.S. memorial cross is the easy case for rejecting the Establishment Clause challenge! It is revealing that Justice Thomas cites only the district court decision. Perhaps he did not wish to upbraid Judge Kozinski, who, writing on behalf of a unanimous Ninth Circuit panel, affirmed the district court's decision, concluding that the sectarian discrimination made the cross an easy case for invalidation: Quoting Allegheny County, Judge Kozinski wrote that "Whatever else the Establishment Clause may mean ..., it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).'" 371 F.3d at 550. (It's also worth noting that, although this holding invalidated a federal statute, the SG did not even petition for cert.)
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Comments
Can you provide the full cite to the Kozinski quote? When I put "371 F.3d at 550" into westlaw, I get U.S. v. Ford which was written by Judge O'Scannlain.
ML: Sure -- Buono v. Norton, 371 F.3d 543, 550 (CTA9 2004).
Posted by: Fern R at June 27, 2005 07:36 PM
Just a point that is not directly relevant to the constitutional issues in this case. Hinduism cannot properly be described as "polytheistic", as it consists of many sects and denominations, each with differing conceptions of Ultimate Reality and Godhead. There are atheistic Hindus, monistic Hindus, theistic Hindus, pantheistic Hindus, and polytheistic Hindus. Ironically, Scalia's opinion that the State may promote "monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind" quite appropriately describes the beliefs of most Hindus, though they would not agree with the names or particular expressions associated with the promotion Scalia wishes to allow.
ML responds: My apologies for the oversimplification. I adopted the Hinduism example for a polytheistic religion from page 13 of Justice Stevens's dissent, which in turn cites the amicus brief of the Hindu American Foundation. That brief (http://www.lc.org/attachments/TenCommAmicus_VanOrd_Hindu.PDF) offers this description, which does not quite comport with the Stevens reference to Hinduism as a "polytheistic sect":
Hinduism propounds a theology of panentheistic monotheism, recognizing that God can be called many names and may take many forms, and that the means or ways to salvation are many. Hindu theology does not place proscriptions on how to pray, and each person may choose which form of God to pray to on his or her own path to self-realization. Moreover, Hindus do not conceive of God as a specific, single entity separate from other living things, in stark contrast to the portrayal of the God who delivered the Ten Commandments in Exodus. Rather, for Hindus, God is omnipresent (anantam) and within all living things. Thus, Hindus cannot reconcile their non-dualistic teachings with the very First Commandment, which mandates the exclusion of all divine manifestations other than the Judeo-Christian God. For the same reason, the teachings of Hinduism cannot be squared with the reference to "the Lord thy God" in the Fourth Commandment.
Posted by: Mani Varadarajan at June 28, 2005 04:26 PM
Funny.....if we maintain a memorial (that the Government didn't install) that happens to be a cross, we are promoting Christianity, but if we maintain a plaque honoring, say, the founder of the Girl Scouts, that wouldn't be construed as supporting the Girl Scouts. How is this so?
Posted by: Doc Neaves at July 6, 2005 07:43 AM