Friday, July 01, 2005
Evangelicals, Secularists, and Status-Wars: A Reply to Balkin
Ten Commandments | 12:46 AM | Noah Feldman | Comments (3) | TrackBack
I’m grateful to my teacher and friend Jack Balkin for his illuminating response to my forthcoming N.Y. Times magazine article and book, which he posted this morning on Balkinization. I’m especially interested in his characteristically creative hypothesis about public religious symbolism, which he says is about the battle for social status – because if it is correct, it proves my point better than I did myself.
I’m not certain that I agree with Balkin that seeking government validation for religious symbols amounts to an attempt by those I have called values evangelicals to win a zero sum fight for social status against legal secularists. But assume for the moment that this is so. That would mean that the secularists’ attempt to keep those same symbols out of the public sphere is also an attempt to win a social status fight. Since Lemon, and indeed even a bit before, secularists have been on top, and Balkin says they will be loath to give ground now, when evangelicals are rising. But if this is a fight about social status, why in the world should the Constitution of the United States adjudicate it in favor of the secularists? If class wars must inevitably be fought, as Balkin implies, the place to fight them out is electoral politics, not the courts.
Unless, that is, you are a law professor, a secularist, and thus a member of an elite which has enormous social status and a disproportionate influence on just one branch of government, namely the judiciary. In essence, Balkin is implying that secularists will (and perhaps should) resist the temptation to give away the judicial veto that has enabled them to stay on top in the status wars. Notice that I never urged the government to go out and put up religious symbols; I just argued that the Constitution should not be read to prohibit them when democratic politics have generated such symbols. I don’t much care for wars in which one group tries to elevate itself over others; but I am a lot more troubled by one group claiming that egalitarianism just so happens to mandate the elevation of its own symbolic preferences. It is more than likely that some values evangelicals understand the judicial prohibition on religious symbols in just the terms that Balkin proposes. No wonder, then, that they think secularists are denigrating them and their faith.
In my own view, most secularists are nowhere near so cynical. Most, I think, sincerely feel that religious symbols exclude them, and oppose such symbols out of the (mistaken) belief that if they are eliminated, all Americans will feel included. Those secularists, I hope, will see from my argument that their wholly admirable goal of inclusion in fact is not satisfied by a ban on public religious symbols, because values evangelicals end up feeling excluded. And of course what is really at stake is not the symbols themselves, but what they stand for. The reason people on both sides get so riled up about religious symbolism is that it is a stand-in for the deeper question of whether religious values should or may determine political choices. Here, too, I want secularists to acknowledge that asking people of faith to keep their religious commitments out of public discourse is not a neutral or inclusive or “liberal” as that term was classically understood, but actually exclusionary.
Finally a quick reply to some of Balkin’s other thoughts. Fights over money really are zero-sum in the real world where you can’t just get more money out of thin air, but must raise taxes or cut somewhere else. That’s why the professional politicians – as well as the political scientists – generally think that if you want to know what’s really going on in politics, you should follow the money. As for solving the details of what counts as government funding or what kinds of activities performed by religious institutions should be denied funding, I entirely agree that much more detail would be needed to make out a full jurisprudence. That’s not what I’m doing in this article, though, or indeed in the book from which it is loosely excerpted. Instead I am trying to change the entire framework in which these admittedly difficult decisions will be made. In the book, Divided by God: America’s Church-State Problem – and What We Should Do About It, I offer a new interpretation of the history of church-state relation in the U.S., one focused on successive waves of newly developed religious diversity as the drivers of our ideas on religion and government. I hope readers of this posting will have a look at the full argument, and let me know what they think.
A Thoughtful Proposal -- in the Wrong Direction
Ten Commandments | 12:25 AM | Thomas Berg | Comments (0) | TrackBack
Professor Feldman's "A Church-State Solution" is a very thoughtful piece, attentive to the current positions and divisions on church-state matters. I do think, though, that his proposal would take things in the wrong direction. Feldman's is largely an argument about what policy will reduce religious divisions among us, and I think it suffers from two problems.
1. Feldman overlooks other goals, besides reducing religious division, that may be of equal or greater importance in church-state matters. For example, a very different theme was central to the founding-era proponents of religious freedom and disestablishment: the integrity and independence of religious organizations and communities. They viewed this theme as crucial both because religion (duty to a higher power) was of intrinsic importance and because religion was essential to the virtue of citizens and thus the health of society. A major reason for disestablishment was that religion would better thrive and contribute to society if it was not promoted or favored by government, but rather reflected the free choices of individuals who would then affect society and government through their values.
Feldman's proposal -- allow government to make symbolic statements for its favored religion, but forbid government from including religious schools or charities in funding programs – would lead us away from these ideals of religious integrity and voluntary choice. Cases about government symbols -- the category where Feldman wants to allow more government-religious interaction -- involve the government selecting one message it favors, perhaps on the basis of majority vote, but certainly to the exclusion of other messages that many citizens would choose. And even the general religious view that the government selects is likely to be watered down or otherwise distorted to suit the government’s interests: official prayers will be reduced to the least common denominator between varying faiths, municipal crèches will be surrounded by plastic reindeer and used to encourage the commercialization of Christmas.By contrast, the policy that Feldman wants to bar -- inclusion of religious schools or social services in funding programs – can reflect much better the choices of individuals and religious communities. A wide range of entities can participate in these programs under equal terms, reflecting a wide range of choices about religion. With voucher programs, the amount of funding is a direct function of the choices of individuals to attend a given school or receive help from a given charity. Indeed, funding is probably necessary to ensure that religious schools or charities can continue to thrive according to individuals’ choices, since government typically funds the competing public/secular entities.
2. Even if reducing division is the overriding goal, I question whether Feldman’s proposal will achieve it. He’s right that voucher programs create some disputes over whether some schools will be denied eligibility because of their unpopular or anti-social teachings or practices. But of course he himself proposes to exclude school because of their religious teaching: why shouldn’t this exclusion promote just as much resentment, or more since it’s so broad-brush? (As my Mirror of Justice colleague Rick Garnett points out, and as I’ve discussed here, the largest class of religious schools, Catholic schools, do quite well at producing civic virtue.) The exclusion of religious schools from funding has produced intense controversy for decades; what makes us think it wouldn’t do so in the future? Even more, excluding religious schools from funding intensifies cultural disputes by pushing everyone (except the wealthy) into a single set of institutions, the public schools: many more people then have an interest in insisting that the schools reflect their (inconsistent and incompatible) values. We will continue to face the endless emotional disputes over public-school prayers, Christmas prayers, sex education, and countless other issues. As Jack Balkin put it, disputes over the content of official statements in government settings are "zero sum"; someone must win and everyone else loses. By contrast, voucher-type programs allow families of varying views each to send their children to schools closer to their views.
Feldman’s answer is that secularists and religious minorities should accept more Christian elements in the public schools and the public square. But such a sacrifice is still bound to produce resentment among non-Christians; and voucher programs would make the sacrifice unnecessary because families who wanted serious Christian elements could go to (now more affordable) Christian schools. In addition, any amount of religion that Feldman would allow in public schools would (and probably should) be insufficient to satisfy those who want their children’s education to contain serious religious elements and not just the occasional watered-down prayer or plaque on the wall. (In fact, Feldman would still forbid any sort of “mandated” prayer, which, in the light of Supreme Court precedent such as Lee v. Weisman, would probably cover any sort of official prayer in a public K-12 school.)
3. In the modern state, therefore, preserving the goal of religious voluntarism that animated the founders calls for the opposite of Feldman's proposal: continued suspicion of official government religious pronouncements, but increased acceptance of including religious choices fully in programs of educational or social-service funding. Nevertheless, I want to emphasize that I think that Feldman's analysis is very thoughtful and deserves close study.
(I should finish by saying that I share and appreciate Feldman’s position that religious views should be fully welcome into public debate on law and policy. But I don’t lump that question together with question of official government pronouncements on religion, as he does. One can draw a distinction between government being influenced by religious values in deciding on matters of law or legislation within its competence for example, being influenced by Catholic pro-life views in eliminating the death penalty) and government making a separate and more general pronouncement of a religious nature (for example, posting the Ten Commandments as a statement about the religious foundations of law in general). Religious values may participate as equal partners in public debate, and thus may influence the debate, and thus in a democracy may influence public decisionmaking. That doesn’t establish those values in the sense of the government adopting them as its favored stance overall. Indeed, much of the purpose of disestablishing religion – removing it from a direct favored relation with government – was to enable it to influence government by influencing the values of the people who then influence the government through debate and voting.)
Thursday, June 30, 2005
Religious Symbols and Funding -- the Feldman/Balkin/Berg/Garnett "Debate"
Ten Commandments | 07:38 AM | Marty Lederman | Comments (0) | TrackBack
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.
Wednesday, June 29, 2005
Curing an invalid purpose
Ten Commandments | 12:23 PM | Rick Garnett | Comments (2) | TrackBack
In the McCreary case, the display at issue had been revised after, and in response to, earlier rulings by courts that the Counties' two previous displays lacked a "secular purpose." And, one of the issues in play was the extent to which the history of the litigation regarding these displays, and the content of the two earlier displays, was relevant to the question whether the third display had the required "secular purpose."
Judge Ryan, dissenting from the Sixth Circuit's ruling below, had "denied that the prior displays should have any bearing on the constitutionality of the current one: a 'history of unconstitutional displays can[not] be used as a sword to strike down an otherwise constitutional display." Justice Souter, however, insisted that "the world is not made brand new every morning. . . . [R]easonable observers have reasonable memories, and our precedents sensibly forbid an observer 'to turn a blind eye to the context in which [the] policy arose.'" He added, in a footnote, "[j]ust as Holmes's dog could tell the difference between being kicked and being stumbled over, it will matter to objective observers whether posting the Commandments follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose."
Now, Justice Souter emphasized that "we do not decide that the Counties' past actions forever taint any effort on their part to deal with the subject matter." Still, "an implauslbe claim that governmental purpose has changed should not carry the day in a court of law any more than in a head of common sense." Building on Marty's post asking about the prospects for future installations of Ten Commandments displays, I wonder what we can expect in terms of the development of a curing-nonsecular-purposes jurisprudence? More specifically, in practice, will -- in Justice Scalia's words -- a continuing "desire to display the Ten Commandments", in the face of court rulings that earlier displays are insufficiently neutral or fail to stay on the "acknowledgment" (rather than "endorsement") side of the line, preclude a conclusion that a later display has the required "secular purpose"?
When I was in practice, I worked for a while on the Kiryas Joel litigation. To (over)simplify, after the United States Supreme Court invalidated -- on Establishment Clause grounds -- the Kiryas Joel school district, the Legislature of New York tried again. Then, the new district was also invalidated by the New York Court of Appeals (although that court conceded that the "Legislature was perfectly within its authority in attempting to cure the constitutional infirmity of a prior law"). So, the Legislature tried a third time. And, in an opinion invaliding this third effort, the State's intermediate appeals court complained that "this case results from the third attempt of the Legislature of this state to ignore the rulings from Courts . . . and to impermissibly endorse the Satmar community of Kiryas Joel." (The New York Court of Appeals affirmed, 4-3).
Here's the question I'm getting at: When will / should government responses to judicial determinations that previous government actions violated the Establishment Clause be framed as "attempt[s] . . . to ignore" such determinations?
Tuesday, June 28, 2005
What are the Prospects for Future Erections of the Ten Commandments?
Ten Commandments | 05:32 PM | Marty Lederman | Comments (1) | TrackBack
Several of us on this sub-blog have speculated that the "practical" message of yesterday's decisions -- and of Justice Breyer's controlling van Orden concurrence, in particular -- is that although some pre-existing, longstanding displays of the Ten Commandments may be permitted to stand (under a sort of "grandfathering" exception), going forward there will be a strong presumption that new attempts to display the Ten Commandments on state property are unconstitutional, and that the Court will not look kindly on most examples of government speech of a sectarian nature.
On his "Religion Clause" blog, Professor Howard Friedman agrees with this assessment: "While characterizing the motivations of the Fraternal Order of Eagles and Cecil B. DeMille in their distribution of monuments in the 1950's may be difficult, it is not difficult to characterize the motivations of those posting the commandments in Kentucky courthouses. They were attempting to reclaim a Christian America. The scrambling to hide that motivation is something that only lawyers could ignore. The net effect of the rulings will be to prohibit new monuments today motivated by Christian evangelism, while keeping the bulldozers away from scores of courthouse lawns around the country."
This understanding of the precedential impact of yesterday's decisions is strongly confirmed, especially for lower courts dealing with the issue, by the Court's actions today in denying certiorari in two cases that Lyle discusses over on the main blog: one a ruling invalidating a state judge's use of a Ten Commandments poster in his courtroom, and the other a ruling forbidding a city council from convening its meetings with prayers referring to Jesus Christ. It is notable that the Court did not "GVR" these cases (i.e., grant the petitions, vacate the judgments and remand for reconsideration in light of van Orden and McCreary County) -- something that it ordinarily would have done if, in the Court's view, yesterday's decisions might have had any impact on the lower court judgments.
On the other hand, Professor Friedman concludes that "evangelicals are already misreading the opinions. The Washington Post reported that within hours of the decisions, the Christian Defense Coalition announced a campaign to erect monuments similar to the one in Texas in 100 cities across the country as a way to preserve the country's Christian heritage. And the Fort Wayne Journal Gazette reports a rush by Indiana legislators to place the Ten Commandments on Indiana's statehouse lawn." He doesn't think these efforts will meet with much success: "It is the motivation, not the location or form of the depiction, that is key to yesterday's holdings. Only willful blindness could lead to a different conclusion."
Thoughts?
A "secular purpose" to aid "religion in general"?
Ten Commandments | 04:09 PM | Rick Garnett | Comments (2) | TrackBack
A few years ago, Professor Andrew Koppelman published a paper in which he argued that the Establishment Clause's "secular purpose" requirement is best understood "as permitting government to favor religion in general, so long as its support does not violate the axiom that government may not declare religious truth." And, it is possible, he argued, for "government to favor religion-in-general without declaring religious truth." But what is "religion-in-general"? Koppelman wrote:
If there is a universal human problem, then it is a matter of some urgency to identify this problem and its cure. Religion-in-general is the set of activities that seek to address this universal human problem. The goal that the state may permissibly pursue is to be defined at this level of abstraction. The state may coherently single out for special favor the enterprise of seeking this universal remedy.There is a lot more to Koppelman's article and argument. I wonder, though, if his claim that promoting the good of "religion in general" is consistent with the secular-purpose requirement (a claim which, in his article, he contended was consistent with the relevant cases, correctly understood) can be squared with Justice Souter's opinion in McCreary? Justice Souter suggests (op. at 12), for example, that a purpose "to favor . . . adherence to religion generally" would be an impermissible one. Now, I imagine that Justice Souter is thinking and talking about "religion" on a lower level of generality or abstraction than is Professor Koppelman. Still, does Justice Souter's opinion leave room for government efforts to promote "religion in general", as Koppelman defines it?
Religion and Public Choice?
Ten Commandments | 10:29 AM | William Marshall | Comments (0) | TrackBack
As Doug suggested yesterday, one of the practical results of these
decisions is that they will force politicians to conceal their
motivations (if they want their displays of religoius symbols upheld.)
This strikes me as a very good thing. Although I have no doubt that the societal divisions these cases represent are real and deep, there is also no doubt that these divisions have been exacerbated by politicians seeking to exploit them for political gain. True, as Eugene notes, the decisions themselves can be divisive; but isn't there a difference when the division is caused by a court seeking to resolve a controversy rather than by a politican seeking to exploit one? That said, I certianly agree with Burt and Ann that these cases are trivial and cause more harm than they solve. My only concern about that, however, is that, left unchecked, politicans will continue to push the envelope in order to get the political benefits that they percieve in being seen as advancing religion against a hostile secularism.
Monday, June 27, 2005
Why It All Matters
Ten Commandments | 10:17 PM | Noah Feldman | Comments (7) | TrackBack
Ann Althouse points out that the actual symbols here are not inherently important--but that is always the case where symbols are concerned, and it was true of the creches in Lynch and Allegheny Cty, too. The reason today's cases are significant is that the Ten Commandments displays are symbols of a far deeper divide over the fundamental question whether religious values should inform public policy choices or rather should remain a private matter, irrelevant to the state's public decisions and the public reason that justifies it. This debate in turn sheds light on the core question of liberal consitutionalism, namely whether the state may or should promote a version of the good life even as it allows people to pursue their own choices. The Ten Commandments displays may be trivial or Cecil B. DeMille-inspired, but the two tablets, precisely because they are law (at least to some) are in fact a perfect metonymy for Law itself and its relation to religion.
The deep disagreement on the Court, reflected in the doctrine (if it can charitably be called that), is therefore not just a local embarrassment for those of us who care about the rule of law even in constitutional cases. The judicial divide reflects the national split.
I have more on this, but will hold it for an article in this Sunday's Times magazine and a book, Divided by God, that will be out next week.
Putting aside the "brooding and pervasive devotion to the secular."
Ten Commandments | 07:07 PM | Ann Althouse | Comments (2) | TrackBack
In Van Orden, Justice Breyer quotes Justice Goldberg:
[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.
“Brooding… devotion to the secular” – that’s a phrase that has always struck me too. What do we really think we are doing with the Separation of Church and State? It should be that we are invigorating our culture, not grimly purifying it, squeezing out the heartfelt expressions of real people, scrubbing away traditions perceived as tainted.In McCreary,Justice Scalia begins with a story about himself:
On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”
Even as the Establishment Clause is fundamental to our national identity, we have not taken it to have a thuddingly heavy meaning. We have found some air in it, some room for the expression of human beings who, despite their placement in government positions, naturally speak of God. They could learn to watch themselves and avoid such expressions, but we haven’t required it.Installing a big permanent stone monument is scarcely the same as speaking “God bless America.” It’s the very opposite of spontaneous human expression. But it’s an old stone monument, and most people either don’t notice it, don’t mind it, or get a positive feeling from it. To take it down now is so inexplicably intrusive to ordinary people who’ve gotten used to it or who never noticed it before but would surely notice the removal. I find it easy to align myself with Justice Breyer and say surely tolerating this old monument can be part of what it means to get along in a pluralistic society and therefore part of the real meaning of the Establishment Clause.
I can accept McCreary too. The framed document inside the courthouse, put up recently, is different enough. It's odd to have two different outcomes, and part of me would prefer a crisp rule, if for no other reason than to convey to ordinary people that there really is law here. But continuing the complicated analysis of what Justice Breyer calls the "borderline" cases is not going to destroy us. We can tolerate some complexity if we must.
Maybe it's better that it's not so easy to see what's permitted and what isn't, and those who make the decisions whether to file lawsuits can exercise a little discretion about what is worth fighting for. Clearly, old things carved in stone should be left alone. (A rule that rhymes.) Recent stunts by political panderers: go after that.
Ten Commandments
Ten Commandments | 05:30 PM | Burt Neuborne | Comments (8) | TrackBack
Sorry I'm late to the party. At my age, doctors are forever poking and prodding, so I've just read the two sets of opinions. My initial reaction is that it isn't worth the time to read the opinions. Years ago, I proposed the "two plastic animals" rule to govern public displays of religious symbols. The rule posits that any religious symbol may be publicly displayed as long as it is flanked by two or more plastic animals of sufficiently bad taste. The Court has now refined the law of faith-based exterior decorating to allow a religious display if it's matured sufficiently (I suppose the Pieta is per se OK), and if it is surrounded by a sufficient number of secular monuments of sufficiently bad taste. Recent displays that respect the dignity of a great religious symbol may be stamped out. This is doctrinal progress? Frankly, I find Justice Breyer's swing vote very hard to understand. I beleive that he takes contextualism to an indefensible place. It can't be that the Establishment Clause in this context simply tracks Justice Breyer's refined sensibilities. I kept thinking as I read the Breyer opinion that what's really bothering Breyer is Flast. In the absence of a genuine community controversy, why should a single hyper-sensitive person trigger judicial review after 40 years. Breyer transmutes that idea to a loss on the merits, as opposed to an Article III issue. I also think it important that the Scalia/Rehnquist/Thomas position only has three votes. Kennedy would not join part I of the plurality. Thus, even with Breyer's insistence on communing with the oracle at Delphi, I see no major shift in doctrine emerging from the cases. Indeed, the stress on purpose that underlies both cases probably makes it harder for the religious right to paper the country with new symbols. Once again, though, I'll ask why do we care? I'm sympathetic to the notion that being forced to look at the government's display of someone else's religious symbol can be disconcerting and can send a message of exclusion. That's why I've signed all of those briefs. But, tell me that Muslims in this country need a display of the 10 Commandments to let them know they are outsiders. Or, that atheists need government displays of religious symbols to tell them they are on the margin of American public life. To my mind, worrying about the symbols confuses cause and effect. As long as we insist on an equality principle - a Koranic verse at the Texas capitol, I don't see the value in offending many millions of Americans for whom the displays provide solace and meaning. That's particularly so when the cases enrage millions of persons who then forget about their economic best interests when they vote. I would hold my fire for the many settings when religious zealots use government to force people to behave a certain way. Move over Justice Breyer. I'm climbing in. Burt Neuborne
Offense at What? Classes of Citizens?
Ten Commandments | 05:20 PM | Douglas Laycock | Comments (6) | TrackBack
I haven't read Thomas yet. But I quite agree that "offense at seeing the Ten Commandments" is not the sort of harm against which the Establishment Clause protects. It is offense at seeing the government post the Ten Commandments, thereby taking a position on religious questions and trying to persuade religious minorities to adopt the government's preferred religious views.
It is true that religious minorities can try to get government to endorse their religious views too, and will occasionally succeed, just as Baptists occasionally won parish elections in 18th-century Massachusetts. But that just highlights a core part of the problem: when we let government take positions on religious questions, we are implicitly or explicitly voting on religion -- voting on which religious views deserve endorsement. The religions that Jack Balkin says are labeled second class are the religions that regularly lose those explicit or implicit elections.
The process of voting on religion, of the electorate choosing the true religious view, should scare evangelicals as much as anybody. But like the Congregationalists in Massachusetts, they don't see a problem as long as they win most of these implicit elections -- and as long as losing only means that no display goes up, not that some other religion's display goes up. The Congregationalists learned when the Unitarians started winning elections.
Justice Scalia and "second-class citizenship"
Ten Commandments | 04:24 PM | Rick Garnett | Comments (5) | TrackBack
I appreciate Jack Balkin's detailed and provocative post on Justice Scalia's dissenting opinion in McCreary. With respect, though, it is not as clear to me that the opinion shows that Scalia is "willing to enshrine a notion of first class and second class citizens based on religion -- first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot." Maybe I'm hung up on the words "can" and "cannot." I do not understand Justice Scalia to be saying in McCreary -- or ever to have said -- that the Constitution would permit government to preclude, prevent, or ban any citizens from "hav[ing] government acknowledge their religion in public pronouncements and displays." If some citizens "cannot" secure -- or fail to secure -- such acknowledgments, is it correct to say that this because of a constitutional theory rendering them second-class citizens? Would Justice Scalia regard this failure as signalling that these citizens "don't count," or are "insignificant"? Or, would he say instead that the democratic political process tends to produce acknowledgments of majoritarian values and commitments, which the Constitution permits, even when it does not (and should not) permit the enforcement or imposition of those values? (I suppose this question touches also on Justice Thomas's view that "offense at seeing the [Ten Commandments]" is not the kind of harm to which the Religion Clause speaks, and acknowledgments of religion are simply not the kinds of official actions that count as "establishments" of religion). I would welcome others' thoughts (and I apologize in advance if I have misread or misunderstood Jack's point).
The End of Consensus on Prohibiting Sectarian Discrimination
Ten Commandments | 04:09 PM | Marty Lederman | Comments (3) | TrackBack
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.)
Divisiveness, Oppression, and the Impossibiity of Principled Opinions
Ten Commandments | 04:06 PM | Douglas Laycock | Comments (0) | TrackBack
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.
"Divisiveness"
Ten Commandments | 03:23 PM | Sanford Levinson | Comments (0) | TrackBack
With regard to "divisiveness": I think it is useful to compare the concern expressed by Justice Breyer (and, before him, Justice Brennan) for the "divisiveness" posed by religious controvesy in the public square with the views expressed by some conservatives that race-based divisiveness is equally dangerous, so that affirmative action must be made unconstitutional (and not simply criticized as bad public policy) lest the polity be caught up in an ever-more-dangerous identity politics. And, of course, political conservatives, well aware of the power of Karl Marx's analysis, are quick to pounce on anyone who suggests that American politics might benefit from a dose of old-fashioned "class conflict." What unites all of these views is precisely what Rick Pildes brilliantly identified in his article on Bush v. Gore four long years ago: We have a Supreme Court (and, of course, they are not unique in their perceptions) that is basically terrified of politics and the potential for genuine conflict that a serious politics can generate.
The nine justices, of course, are not fearful of precisely the same threats to the political order, thus the 5-4 divisions. As Eugene points out, though, there is no reason at all to believe that these particular Supreme Court justices have any real idea of the practical dynamics of our political system. Steve Breyer is, no doubt, very smart, but it is surely close to bizarre that he believes that participants in contemporary culture wars over the Ten Commandments will be impressed by the Harvardian distinctions between the Ten Commandments in the Courthouse and outside it. As is often pointed out, only Sandra Day O'Connor (who, I am sure, shocked both her supporters and detractors, of whom I am generally one, by actually being consistent in these two cases), has ever actually held elected political office. It is interesting that she doesn't perceive the same threat, at least in this case, that her colleague does.
Lyle Has A Ten Commandments Post
Ten Commandments | 03:14 PM | Tom Goldstein | Comments (0) | TrackBack
On the main SCOTUSblog.
Second-Class Citizenship
Ten Commandments | 02:58 PM | Jack Balkin | Comments (1) | TrackBack
I've placed a long discussion of Justice Scalia's rather disturbing theory of what the Establishment Clause allows on Balkinization. Here's the introduction:
In his dissent in McCreary County v. ACLU, Justice Scalia forthrightly explains that the Establishment Clause is not about preserving neutrality between religion and non-religion. It is not even about neutrality among religions. Rather, it requires neutrality among monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind, and in particular, among Christianity (and its various sects), Judaism, and Islam. From the United States as a Christian Nation, we have traveled to our "Judeo-Christian heritage," and now, apparently, to the "Judeo-Christian-Islamic" tradition. There is no such tradition, of course, as various members of all of these religions (and the various sects of these religions) have fought with and persecuted each other for many years. And one effect of Justice Scalia's theory is that he is willing to enshrine a notion of first class and second class citizens based on religion-- first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot. Well, who said that the Constitution prohibited different classes of citizens, anyway? The Fourteenth Amendment? Who cares about your stinking Fourteenth Amendment!
Justice Breyer and Divisiveness
Ten Commandments | 02:57 PM | Marty Lederman | Comments (4) | TrackBack
I don't really want to disagree here with anything Eugene and Rick have written about whether evaluations of "divisiveness" can or ought to be a function in deciding religious symbolism cases. I'd simply like to suggest that perhaps Justice Breyer is not so much arguing that the outcome should be determined by the divisiveness (or lack thereof) of the display in question, as much as he is offering us clues to his own split votes in these cases. Reading his separate opinion, it's hard not to conclude that he is, in fact, very troubled by the Texas decalogue, and that it is plainly unconstitutional on any reasonable doctrinal test. But Justice Breyer well knows what the public and political reaction would have been had the Court struck down both displays. It wouldn't have been pretty, and yes, it would have been divisive in exactly the manner Eugene suggests -- which would be an unambiguously bad thing, for the Nation, for the Court, and for Establishment Clause doctrine (and perhaps even, as Burt Neuborne suggests, for progressive causes generally!). And so Justice Breyer takes one for the team, much in the way that Justice Stevens did with his standing opinion in Newdow. That is to say: His is a tactical vote, intended to allay precisely the Court-driven divisiveness that would result if he acted in accord with doctrine and his genuine beliefs about how the cases shoudl come out in the best of all possible worlds.
Importance (Not!) of Religious Symbols Cases
Ten Commandments | 02:39 PM | Thomas Berg | Comments (0) | TrackBack
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
Eminently Quotable, But Is It Sound?
Ten Commandments | 02:39 PM | Eugene Volokh | Comments (2) | TrackBack
Justice O'Connor, concurring in McCreary County, writes:
Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society.By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that "[w]e are a religious people" has proved true. Americans attend their places of worship more often than do citizens of other developed nations, and describe religion as playing an especially important role in their lives.
Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?
I'm sure this will be quoted often -- but is it really apt? For much of our nation's history our system has been (by and large) little legal coercion of religious practice, coupled with routine government references to religion, including displays of Ten Commandments memorials; displays of creches; graduation prayers and even daily prayer in school; Presidential preclamations and Congressional acts praising religion; references to God on coinage, in the National Anthem and elsewhere, references that likely contained, at least at the time, some message of endorsement of theism; and more. And this has continued until recently: I suspect that standalone creches were quite common until the 1989 decision striking them down, graduation prayer was quite common until the 1992 decision striking it down, and Ten Commandments displays, even ones that the Court would now consider unconstitutionl, were fairly common until today.
What's more, little legal coercion of religious practice, coupled with routine government references to religion is the system that Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas would adopt. Justice O'Connor's system is much less tried and true.
Now Justice O'Connor might well be right on her bottom line: Perhaps barring Ten Commandments displays, and similar government endorsement of religion, would further strengthen American traditions of religious tolerance, and would increase the religiosity of Americans to boot. (Query why increasing the religiosity of Americans should be any concern of the Court's; perhaps as to that, she meant to ask why supporters of religion should want to trade away a system that has served them so well.)
But it seems to me far from clear that her argument for that bottom line works here. That a routine-endorsement-of-religion system has done good things in the past (compared to systems whose flaws went far beyond endorsement of religion) doesn't mean that a no-routine-endorsement-of-religion system would yield equally good results in the future.
Justice Breyer's Naïveté
Ten Commandments | 02:24 PM | Eric Muller | Comments (8) | TrackBack
(Cross-posted from IsThatLegal?.
I was not going to write anything about today's Ten Commandments decisions, but the foolishness and naïveté of Justice Breyer's outcome-determinative concurrence in the Texas case calls out to be named.
Several factors lead Breyer to see the Ten Commandments tablets on the grounds of the Texas State Capitol as secular, but the one he calls "determinative" is that nobody has publicly complained about it before.
As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to engage in any religious practice, to compel any religious practice, or to work deterrence of any religious belief. . . . Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets message as part of what is a broader moral and historical message reflective of a cultural heritage.
What could Justice Breyer mean when he says that "40 years passed in which the presence of this monument, legally speaking, went unchallenged?" Breyer is trying to gauge whether people visiting the Capitol see the monument as religious, and to do that, he asks whether people have repeatedly filed lawsuits?That is supposed to be a measure of what the average visitor sees in the monument?
Why does Breyer limit himself to asking whether the monument has "gone unchallenged" "legally speaking?" Do people's views register only if people have the courage and the resources to sue? Here's the truth: Justice Breyer hasn't the faintest idea how "the public" actually sees this monument. He's just making this up.
Justice Breyer leaves open the possibility that decades of "legally unchallenged" display of a religious message might run afoul of the Establishment Clause if the absence of "legal challenge" were due to a "climate of intimidation."
How, exactly, is a person to show such a "climate of intimidation?" Perhaps there is no such climate in Austin, Texas, but monuments like this grace the parks of little towns across the country -- towns like Cody, Wyoming, where there is nary a mosque nor a Buddhist church nor a Hindu temple to be found.
The social pressures toward conformity and against public complaint (not to mention litigation) can be overpowering in America's small towns. Take it from someone who lived for four years in Laramie, Wyoming (which, by the way, is a melting pot compared to Cody). I could never "prove" a climate of "intimidation" on religious matters in Laramie. But that doesn't mean it's not there.
Justice Breyer has obviously never lived in a small town. He's mistaking his own view of this monument for "the public's." And he's missing the Establishment Clause dangers that lie in towns so homogeneous--and there are many of them--that "the public" could never be expected to produce a soul brave enough to complain.
[Marty Lederman adds: Eric, I think you'll like Justice Souter's response to this argument:
"[T]he State’s argument . . . seems to be that 40 years without a challenge shows that as afactual matter the religious expression is too tepid to provoke a serious reaction and constitute a violation. Perhaps, but the writer of Exodus chapter 20 was notlukewarm, and other explanations may do better in accounting for the late resort to the courts. Suing a State over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause."
Having said that, I should note that I don't think Justice Breyer was being naive -- instead, he was being tactical. I'll try to say more on this in response to Eugene's post.]
Divisiveness
Ten Commandments | 01:27 PM | Eugene Volokh | Comments (7) | TrackBack
The opinions joined by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer routinely stress that Ten Commandments displays and the like often threaten to produce "religious divisiveness," and that the Establishment Clause should be read as making such divisiveness into a reason for invalidating (at least some) government actions.
But I wonder: What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions? My sense is that it's the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I've seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.
Isn't there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?
Now it may well be that the Court's actions are justifiable under some other theory. There may well be some other reason why government use of such religious symbols must be struck down despite the religious divisiveness of such government actions. But it seems mighty odd for the Court to strike the actions down in the name of a goal -- avoidance of religious divisiveness -- that the Court's actions are themselves undermining.
The Breakdown of the Justices
Ten Commandments | 01:01 PM | Tom Goldstein | Comments (0) | TrackBack
Doug Laycock writes below:
[C]ontrast what the four dissenters say in McCreary (probably what they really believe) with what the same four say in the Van Orden plurality (trying to take account of the Court's precedents). Interesting that after failing to get the fifth vote, they left the Van Orden opinion the way it was instead of rewriting it on the lines of the McCreary dissent. I think to safe to say that the McCreary dissent is a better prediction of their future votes.Consistent with that, note that Justice Scalia has no majority opinion in that sitting. It seems to me quite possible that Justice Scalia's McCreary County dissent was originally assigned to be the Van Orden majority.
ML asks: Isn't it more likely that AS lost a majority in Spector?
TG responds: I personally think not because Kennedy's Spector opinion has six Justices at one point. (Rich Samp agrees with you in a comment over on SCOTUSblog, however.) I think the Chief may have tried to write something that he hoped Breyer could join, or at least something that when combined with Breyer's opinion articulates something like an intelligible principle of law.
Surprises in the Ten Commandments Cases
Ten Commandments | 12:54 PM | Rick Garnett | Comments (0) | TrackBack
First, thanks very much to SCOTUS Blog for hosting this discussion, and for inviting me to participate. I am sure I am not alone in thinking that the Kelo-related conversation hosted by this Blog in recent days was incredibly informative and engaging.
I wonder if others were surprised that the vote in Van Orden (the Texas case) was only 5-4? After oral argument, I thought that Justice Breyer would probably vote in favor of the Texas monument; I did not expect, though, that Justice O'Connor would vote, as she did in McCreary, against the display.
I am particularly intrigued by Justice Breyer's statement -- his concession, perhaps? -- that he "see[s] no test-related substitute for the exercise of legal judgment" and that "no exact formula can dictate a resolution to . . . fact-intensive cases." As I understand his opinion, then, he does not even profess to rely on the already "fact-intensive" endorsement test, but instead invokes, at an even more general level, "the underlying purposes of the Clause." And, one of the "basic purposes" of the Religion Clause, he writes, is to "avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike."
In several recent opinions -- e.g., his Zelman dissent, his opinion in Newdow -- Justice Breyer has treated as constitutionally significant his predictions or observations regarding what Chief Justice Burger once called "political divisiveness along religious lines." So, is "divisiveness" the new "endorsement"?
I should note that I have an article in draft that examines, in some detail, the history and content of this "political divisiveness" argument. I'm sure we'll all have more to say about this as the conversation proceeds, but here's a quick thought (taken from an essay I wrote a few weeks ago for Commonweal magazine):
It is worth remembering . . . with John Courtney Murray, that “pluralism [is] the native condition of American society” and that the unity toward which Americans have aspired – e pluribus unum – is the “unity of a limited order.” Those who crafted our Constitution believed that both authentic freedom and effective government could both be secured through checks and balances, rather than standardization; and by harnessing, rather than homogenizing, the messiness of democracy. Accordingly – this side of heaven, anyway – we should, in Murray’s words, “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.”
Initial Reactions
Ten Commandments | 12:43 PM | Douglas Laycock | Comments (1) | TrackBack
Quick initial reactions on McCreary and Van Orden. Disclosure: I filed amicus briefs in each case for the Baptist Joint Committee, the Interfaith Alliance (and in Van Orden, joined by the American Jewish Congress and the American Jewish Committee).
The split decision, the emphasis on purpose in McCreary, and Breyer's emphasis on the specific facts of Van Orden, mean that we will be litigating these cases one at a time for decades. Still, on the whole, a big win for the supporters of these displays. The ones that have been around for a long time, which is a lot of them, now have something of a grandfather clause. Conceal your religious purpose, point to anything else in the area that the state might have endorsed, however unrelated, and the state should be home free.
New displays will be tougher to defend, but the lesson for supporters of such displays is the same: conceal religious purpose, put some secular stuff nearby, obfuscate, and your chances are good. These longer odds of success should deter lawsuits, but Breyer's opinion is a counterincentive: sue early, as soon as the thing goes up, before the grandfather clause begins to run.
I agree with those who say these cases are primarily of symbolic significance. I recently had to explain US church-state law to a French audience, and found myself sheepishly explaining the time and energy we spend on these issues. But to those who feel strongly on either side, the felt sense of insult is great.
Other things to note: contrast what the four dissenters say in McCreary (probably what they really believe) with what the same four say in the Van Orden plurality (trying to take account of the Court's precedents). Interesting that after failing to get the fifth vote, they left the Van Orden opinion the way it was instead of rewriting it on the lines of the McCreary dissent. I think to safe to say that the McCreary dissent is a better prediction of their future votes.
Proof of secular purpose and adverse possession of the public square
Ten Commandments | 12:34 PM | Ira Lupu | Comments (0) | TrackBack
These two decisions highlight two grand themes. In McCreary County, the theme of course is the relevance of governmental purpose to constitutional outcomes. One very important question that may now appear in future litigation about the Decalogue or other religious symbols is the placement of the burden of proof re: secular purpose. Would any government display of a religious text, like the Ten Commandments, raise an inference of impermissible religious purpose under McCreary, thereby shifting the burden to the government to provide objective evidence of a secular, validating purpose? Or does the burden remain on plaintiffs to show objective evidence of impermissible purpose beyond the symbol itself? (McCreary involved plenty of such evidence, so the burden was readily satisfied.) For older displays, the placement of the burden may well prove dispositive.
The second question is the more substantive one of the extent to which government may speak in a religious voice not shared by all citizens. Here, of course, Justice Breyer represents the slightly surprising swing vote. (A background paper posted by the Pew Forum on Religion and Public Public Life back in March identified O'Connor and Breyer as the "contextualists" to watch in these cases.) Breyer emphasizes his view of the purposes of the Establishment Clause, which include (for him) avoiding political divisiveness along religious lines, a theme he emphasized in his Zelman dissent. So he focuses on, among other things, the age of the display, and the absence of challenge for 40 years. With Breyer's opinion now representing the controlling position, contemporary attempts to create new displays of the Ten Commandments and other religious sentiments will be considerably more difficult to sustain than older, pre-existing ones. The heaviest impact of that emphasis on the age of the display is likely to fall in the short run on evangelical Christians, who are the prime movers in most such contemporary efforts. The others who will be affected by that emphasis are religious movements newly come to political power in America; they will be less able to have government adopt or acknowledge their messages. And the beneficiaries of Breyer's view are long-in-the-mainstream religious groups (i.e., the sorts of Christians and Jews who cooperated when the Texas monument and others like it went up.)
I am bothered by this sort of adverse possession of the public square by religious sentiments; if you get your message up and keep it there for a generation or two without challenge you win, but if you try to get a new message into that square, and there's contemporary litigation, you may lose. This is not "originalism"; it's some sort of Breyerian pragmatism, and it cannot be squared with any theory of equal religious liberty in America.
More on Justice Breyer, Partly on Divisiveness
Ten Commandments | 08:06 AM | Thomas Berg | Comments (0) | TrackBack
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
The Start of the Ten Commandments Group-Blog
Ten Commandments | 01:46 AM | Marty Lederman | Comments (13) | TrackBack
The Court is expected to issue its decisions in McCreary County and van Orden later this morning. As Tom has noted, nose-counting suggests that Justices Scalia and Souter are writing the two opinions, in which case it might the case that the Court (Justice O'Connor?) has concluded that one display is constitutional and the other is not.
This is the start of a "group blog" on the decisions. In addition to discussion of the decisions themselves, and their doctrinal significance, I'm hoping that our discussants might consider two other, "meta"-questions:
First: Do these sorts of "public religious symbolism" cases matter? Over at her blog, Ann Althouse writes: "I think it's very bizarre of us to regard the Ten Commandments case as the big case. . . . [I]t really just isn't that important whether there's a monument amid other monuments somewhere on the state capitol grounds or a framed text amid other framed texts on a courthouse wall. . . . There are ideologues who want to purge religion from the public eye who care [how the Court decides this particular case] and religionists who want to intrude a lot more of it who care. If either of these groups were getting very far, I would care about the outcome in the cases that would arise. But the displays at issue in this case are inconsequential. Still, they are too much for the extreme secularists and just the beginning of what extremists on the other side would like to see. The Court needs to draw a good line that fends off both extremes. I don't care which side of the line the particular displays at issue in this case end up on.... I ... think the [Establishment Clause] extremists are blowing [this case] out of normal proportion. Everyone needs to learn to get along, and those who want to purify things too much don't impress me. Sure, they'll be put out if the government wins in these cases. I don't think people who take great offense easily should be driving the outcomes.... I think most atheists ... and many religious people ... accept and even enjoy seeing evidence of other religions around them. It's part of art and history and culture -- part of the beauty of the world that we live in (either by the grace of God or by pure, weird chance)."
Reactions to Ann's provocative take?
Second: Have liberals and progressives made a significant error -- in terms of their long-term interests -- in expending energy on such "government religious symbolism" cases over the past generation or two, even if such cases have (from their perspective) resulted in improved Establishment Clause doctrine? This question is prompted by comments of Burt Neuborne at the Amercian Constitution Society "Constitution in 2020" Conference, and on the Conference blog. Notwithstanding the fact that Burt has litigated countless cases involving creches, decalogues, etc., he writes that "one final staple of the progressive judicial agenda may not be worth defending at all -- the religious symbolism cases may do nothing but enrage voters who might be [our] natural economic allies." Is Burt onto something important? And, if so, where should we progressives draw the line? I assume, for example, that Burt does not mean to include in his indictment the cases dealing with elementary schools, such as most importantly Engle and Schempp, even if (as is likely the case) those decisions did more to turn voters away from the progressive agenda than all the others combined. But perhaps he does. And what about Lee v. Weisman, the Santa Fe football-prayer case, Newdow, etc.? (In this same general vein (although not specifically pertinent to the Ten Commandments cases), see also Bill Marshall's candid recent article in the Notre Dame Law Review, in which he argues that "the tension between the constitutional commitment to anti-establishment and the societal need to engage in collective religious exercise can be accommodated by a doctrine that allows for government support for religion in limited and exceptional circumstances," and that "there may be moments of national crisis and grief when instrumental values pale and it becomes constitutionally permissible to pierce the secular veneer.")