"What secular purpose is served?" arguments

[Volokh, Eugene]

        I think this is part of the problem with the secular purpose test:  It promises a simple-seeming test -- is it a secular purpose? -- but to make it have any meaning, we have to add all sorts of twists.  Is the purpose of accommodating people's religious objections to generally applicable laws (not the issue here, I should say) a secular purpose?  Well, it refers to the religiously-driven emotions of groups (usually minorities, but still religiously-driven).  What about having the Bible as a default means of swearing in court (subject to individual changes for those who seek that, which is possible because people are sworn in one by one)?  That too appeals to the religiously-driven emotions of groups, especially the majority, as a means of serving the secular goal of increasing the likelihood that testimony would be accurate.  What about not teaching evolution, as a means of avoiding public hostility to the public schools, avoiding distracting debates, and maximizing public support -- in tax money, private contributions, time, and so on -- for the public schools?  That too appeals to religiously-driven emotions of groups.  Yet all of these also try to achieve secular goals by considering people's religious emotions and preferences.

        The examples I mention above come out differently under the secular purpose test as currently applied, of course.  But that's part of the problem:  The courts say they're just asking about secular purpose, but I don't think they're really applying an evenhanded test.  Rather, there are other things going on that are hiding behind the label "secular purpose."  Perhaps those things are good things; perhaps, for instance, Chip's premise that the government shouldn't use religious means even to achieve secular ends, unless there's no other equally effective way of achieving those ends, might make a good deal of sense (though I'm skeptical about that).  But they aren't an actual inquiry into whether there is a governmental secular purpose.  So that's one reason that I think the secular purpose test is a mistake.

        In any case, though, I take it that we'd agree that preventing the forced destruction (or even relocation) of a local historical landmark is a secular purpose; the question is whether the continued preservation of the monument is constitutionally improper despite the fact that the preservation may have a secular purpose.

        Eugene

> -----Original Message-----
> From: Ira (Chip) Lupu [mailto:iclupu at law.gwu.edu]
> Sent: Friday, April 23, 2010 10:45 AM
> To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> Subject: RE: "What secular purpose is served?" arguments
>
> Eugene writes:
>
> "Even putting up a new cross -- which I agree would be a harder case under the
> endorsement test -- would have some secular purpose:  If indeed many people
> view the cross as an emotionally resonant shape for a war memorial, the cross
> may in fact be effective as a war memorial.  It may also, of course, be emotionally
> resonant in a bad way for some people, which may diminish its effectiveness.  But
> it may well be that those for whom it would emotionally work well are much more
> plentiful than others.  And the purpose of choosing a format that works especially
> well for the great bulk of veterans, veterans' families, and others (if it is indeed
> seen, rightly or wrongly, as working especially well) is a secular one."
>
> On this reasoning, one could defend government's choice to put a cross anywhere
> -- the roof of the U.S. Capitol, or the  White House, or a public elementary school.
> Such crosses would be "emotionally resonant" for everyone who believes this is a
> Christian nation, and that may well be a majority of Americans.  If that's a "secular
> purpose," nothing stops the government from aligning itself with any particular
> religious creed that is popular, and therefore "emotionally resonant" (nothing
> unique about a war memorial -- religions care about ongoing governance, and
> education, as well as death).  But if you take appealing to the religiously-driven
> emotions of majorities as a secular purpose, then you have just read the secular
> purpose requirement out of the Constitution.  I like to put the matter in a different
> way -- the Establishment Clause prohibits government from claiming for itself, and
> aligning itself symbolically ("emotionally," if that is what the symbol does) with a
> sect
>  a!
> rian religious identity.
>
> Back to grading -- I'm promising myself and you all that I will not post again on
> this thread.
>
> 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: Fri, 23 Apr 2010 10:23:44 -0700
> >From: conlawprof-bounces at lists.ucla.edu (on behalf of "Volokh, Eugene"
> <VOLOKH at law.ucla.edu>)
> >Subject: RE: "What secular purpose is served?" arguments
> >To: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
> >
> >     I appreciate Chip's answer, but it seems to me that it shifts away from an
> inquiry into "what secular purpose is served?" into an inquiry of "is this deeply
> insensitive?"  Of course, maintaining the memorial here has a clear secular
> purpose: maintaining something that has become a local historical landmark, and
> that many people have developed an emotional connection to.  Whether that
> connection is motivated chiefly by religious empathy with the cross, by the
> secular meaning of the cross as a war memorial, or even by annoyance with the
> perceived attempts to cleanse public life of all religious references, I'm pretty sure
> the emotional connection is there among many people.  And preventing offense to
> those people is a secular purpose of government, even if the offense stems in part
> from those people's religious sensitivities (and again I'm not sure it does).
> >
> >     Even putting up a new cross -- which I agree would be a harder case
> under the endorsement test -- would have some secular purpose:  If indeed many
> people view the cross as an emotionally resonant shape for a war memorial, the
> cross may in fact be effective as a war memorial.  It may also, of course, be
> emotionally resonant in a bad way for some people, which may diminish its
> effectiveness.  But it may well be that those for whom it would emotionally work
> well are much more plentiful than others.  And the purpose of choosing a format
> that works especially well for the great bulk of veterans, veterans' families, and
> others (if it is indeed seen, rightly or wrongly, as working especially well) is a
> secular one.
> >
> >     Again, perhaps no new cross memorials should be put, or even perhaps
> this cross memorial should be torn down (or moved, which would have its own
> secular costs), because it's insensitive, or because of some "least restrictive
> alternative" analysis or some such.  But that's a separate argument from the
> argument that no secular purpose is served by preserving this memorial.
> >
> >     Eugene
> >
> >> -----Original Message-----
> >> From: Ira (Chip) Lupu [mailto:iclupu at law.gwu.edu]
> >> Sent: Friday, April 23, 2010 9:52 AM
> >> To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> >> Subject: Re: "What secular purpose is served?" arguments
> >>
> >> I don't have an all-purpose answer to this question, Eugene.  It's quite easy to
> see
> >> that the government can assert that any war memorial has the secular purpose
> of
> >> "commemorating the dead", as well as a possible religious purpose of
> >> commemorating them in way that is exclusive to one religious tradition.  It is
> only
> >> when we ask the question about alternatives -- why not a purely secular
> symbol -
> >> that we can see how deeply insensitive it is for the government to be
> religiously
> >> exclusive in the design of war memorials (as distinguished, for example, from
> the
> >> design of December holiday displays, which inevitably will have multiple
> purposes
> >> of seasonal acknowledgment.)  So I refuse to walk into some "one size fits all"
> box
> >> of a "secular purpose" test.  Establishment Clause adjudication is,
> appropriately I
> >> think, exquisitely sensitive to context, and the context here is publicly
> sponsored
> >> war memorials.  (Concurring in Abington v. Schemmp, Justice Brennan
> asserted -
> >> - I'm doing thi
> >>  s!
> >>  from memory -- that the Establishment Clause forbade the government from
> >> using a religious means to accomplish a secular end, when secular means are
> >> readily available.  Doesn't that describe this situation perfectly, where --
> without
> >> the removal problem -- the choice of secular means is superior and costless?)
> >>
> >> 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: Fri, 23 Apr 2010 09:27:50 -0700
> >> >From: conlawprof-bounces at lists.ucla.edu (on behalf of "Volokh, Eugene"
> >> <VOLOKH at law.ucla.edu>)
> >> >Subject: "What secular purpose is served?" arguments
> >> >To: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
> >> >
> >> >  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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