"What secular purpose is served?" arguments

[Volokh, Eugene]

	Chip raises an interesting question, and I'd like to respond, but I'd like to ask first:  Chip, how would you define "secular purpose"?  I'm pretty skeptical of the "secular purpose" prong of Lemon, partly because I think that many actions that are said to have only a religious purpose actually also have secular purposes, at least under what I see as the normal definition of "secular purpose."  But before I get into this, I'd like to have a working definition of "secular purpose" on the table, and since Chip brought it up, I thought he might have something good to offer.  Thanks,

	Eugene

Chip Lupu writes:

> The endorsement test is quite worthless, for reasons that we have gone over a
> thousand times.  But I'm still waiting to hear an argument in support of
> government power to use a religiously partial symbol (here, the cross) to
> commemorate the dead from wars in which all have fought.  Secular symbols are
> available, and quite obviously far more appropriate to the circumstances.  So why
> should the government ever be free to use a religiously partial symbol for this
> purpose?  If you want this point expressed in doctrinal terms, what secular
> purpose is served by a display of the cross in a war memorial? "Commemorating
> the dead" cannot be a satisfactory answer -- that's just restating the problem of
> why an exclusive religious symbol is permissible when fully inclusive secular
> symbols and signs are readily available.  Indeed, because they can speak in
> words -- "this is to commemorate all those who died for their country in foreign
> wars" -- inclusive secular symbols are far superior t!
>  o !
> crosses or other religiously exclusive symbols.  Religious exclusivity is a truly
> obnoxious message for the government to be communicating in a war memorial.
> 
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
> 
> 
> ---- Original message ----
> >Date: Thu, 22 Apr 2010 16:49:35 -0400
> >From: conlawprof-bounces at lists.ucla.edu (on behalf of "Lichtman, Steven"
> <SBLichtman at ship.edu>)
> >Subject: RE: war memorials
> >To: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
> >
> >I don't mean to focus on semantics here, but Eugene's earlier comment is
> revealing:
> >
> >"Rather, [Scalia's] assertion is that people who see a cross memorial for war
> veterans would understand is a  memorial to all war veterans -- which uses the
> dominant gravesite symbol of the country -- rather than as a memorial to Christian
> veterans."
> >
> >What is getting blurred here is that in this case, NOBODY can possibly "see" a
> cross memorial for war veterans.
> >
> >The only thing that you can "see" is a cross.  It stands unadorned, on a hill,
> viewable from a long distance away.  It is only when you get close enough to it to
> actually read the plaque that you realize that what you are seeing is "not" a
> religious symbol, but a marker to the fallen.
> >
> >There is not a single rational person walking this earth who, upon seeing this
> monument for the first time, from the distance that it is visible, would think, "Oh
> look, a monument to the dead of World War I."  Anyone seeing it for the first time
> would think, "Oh look, Christianity."
> >
> >I would gently suggest that there is a indeed blind spot here.  The notion that a
> dominant symbol that is religious in nature can be secularly acceptable precisely
> because it is a dominant symbol ... that notion is blind to the very point of the
> religion clauses, which is that majoritarianism does not apply to faith.  To defend
> religious displays based on majoritariam triumphalism destroys the entire rationale
> for the religion clauses, and demeans faith in the process.
> >
> >Steven Lichtman
> >Shippenburg University
> >
> >
> >________________________
> >Dr. Steven Lichtman
> >Assistant Professor and Pre-Law Advisor
> >Department of Political Science - 413 Grove Hall
> >Shippensburg University
> >1871 Old Main Drive
> >Shippensburg, PA  17257
> >(717) 477-1845
> >http://webspace.ship.edu/SBLichtman/lichtman.htm
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