"What secular purpose is served?" arguments

Rick Garnett rgarnett at nd.edu
Fri Apr 23 15:13:33 PDT 2010


Dear Step,

I hope you are feeling better!  Thanks, again, for taking notice of the paper I did on "divisiveness".  (Help my SSRN count!  Download it here!  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=855104).  As (I think) you and I discussed before, I didn't see my criticisms of the Court's occasional inquiry into, or speculations about, the "divisiveness" likely (in the justices' view) to result from a policy as implying an endorsement of or indifference to exclusionary practices.  And -- just a quibble -- I didn't suggest (if I did, by accident, I retract it!) that the "entanglements prong" should be tossed, just that it should be liberated from the weight of the Lemon "political divisiveness along religious lines" inquiry.  As it happens, I think good no-establishment doctrine *should* focus on "entanglements" between religious and political authority (and less, say, on questions about the extent to which a policy has the effect of somehow "advancing" religion).

All the best,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN page

Blogs:

Prawfsblawg
Mirror of Justice
Law, Religion, and Ethics


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Stephen M. Feldman
Sent: Friday, April 23, 2010 3:13 PM
To: Ira (Chip) Lupu; Volokh, Eugene; 'conlawprof at lists.ucla.edu'
Subject: RE: "What secular purpose is served?" arguments

So, I just got out of the hospital for pneumonia, and I made the mistake of looking at the recent thread on the conlaw listserv.  With all of the debate over crosses and other religious symbols, I couldn't help thinking that it would be worthwhile recalling a recent debate that Rick Garnett and I had involving the Lemon entanglements prong (maybe this is evidence that I'm so delirious that I should still be in the hospital).  Rick had argued in Religion, Division, and the First Amendment, 94 Geo. L.J. 1667 (2006), that the courts should abandon the entanglements prong, particularly its divisiveness component.  He reasoned that the establishment clause should not be invoked as a judicial mechanism to standardize or homogenize the people and their political desires.  Concerns about political divisiveness might be "real and reasonable," Garnett admitted, but that "does not mean that they can or should supply the enforceable content of the First Amendment's prohibition on establishments of religion."  [note:  Rick might disagree with my summary of his argument!]

I wrote a response:  Divided We Fall:  Religion, Politics, and the Lemon Entanglements Prong, 7 First Amendment L. Rev. 253 (2009).  One section focused on the governmental display of religious symbols:

B.  Governmental Displays of Religious Symbols
The entanglements-prong prohibition against governmental actions that engender religiously-inspired political divisiveness should preclude the government from sponsoring or displaying religious symbols, such as crèches.  Of course, governmental displays of religious symbols sometimes entail the spending of governmental funds, and such an expenditure might produce unconstitutional political divisiveness (as discussed in the previous section).  Yet, religious symbolism cases usually differ from the ordinary religious funding case.  Often, in a religious symbolism case, the expenditure of governmental money is minimal.  Furthermore, the governmental display of a religious symbol is not likely to produce annual (or repetitive) legislative battles over the amount of and the criteria for funding.
Even so, regardless of funding, the governmental display of a religious symbol is likely in-and-of-itself to generate political divisiveness that should be deemed unconstitutional.  To be clear, the Court has never interpreted the entanglements prong in this manner, but such judicial protection follows from the arguments justifying the diminishment of political divisiveness.  While some justices have deprecated the entanglements inquiry, including the political-divisiveness component, as "mystifying," a public display of a religious symbol usually has at least one readily decipherable political meaning.  Publicly displayed religious symbols connote priority.  The message is one of division and inequality:  the community and the government favor one particular religion over others.
The Lynch case, upholding a Pawtucket municipal display of a crèche, underscored how a publicly displayed religious symbol can establish religious and political priority.  As argued in an amicus curiae brief filed jointly by the American Jewish Committee and the National Council of the Churches of Christ, religious displays are likely to demarcate certain citizens as social and political insiders and others as outsiders in accordance with their religious orientations.  After the American Civil Liberties Union initiated the legal challenge, the Pawtucket mayor alluded to such a division of citizens into insiders and outsiders.  He emphasized that the crèche was a crucial element of the extensive Christmas display-which also included, among other things, a Christmas tree, a Santa Claus house, and a 'Seasons Greetings' sign-exactly because of the crèche's religious message.  The mayor condemned the lawsuit as "a petty attack aimed at taking Christ out of Christmas."  As reported in a Providence, Rhode Island newspaper, a Baptist reverend more explicitly explained that the message of the crèche was one of religious and political priority.
[W]hen anybody attacks Christianity and nibbles away, eventually the whole structure of American society is threatened.  This is a Christian country.  We invite all men to take residence here.  But one condition of that residency is that they respect our traditions.  These are a part of America and we feel that whoever comes in has an obligation to respect them, to become familiar with them, and to abide by them.
Public support for maintaining the crèche display was powerful and unmistakable.  Ninety percent of the messages to the ACLU and the city endorsed the crèche.  After the district court trial, the judge reviewed approximately seventy letters sent to the mayor and local newspapers and concluded as follows:
Overall the tenor of the correspondence is that the lawsuit represents an attack on the presence of religion as part of the community's life, an attempt to deny the majority the ability to express publicly its beliefs in a desired and traditionally accepted way.  In the Mayor's words, "The people absolutely resent somebody trying to impose another kind of religion on them. ... I think the denigration, trying to eliminate these kinds of things, is a step towards establishing another religion, non-religion that it may be."
Meanwhile, a clinical psychologist testified at trial:
[F]or the child who belongs to a non-Christian family, seeing a Nativity scene as part of a City-sponsored Christmas display will raise "profound questions for that child insofar as whether or not he is okay or more importantly and as part of that whether his parents are okay."  The child will question, because of the setting in which the Nativity scene occurs, his identification with the American culture.
After the Supreme Court issued its decision in Lynch, the Jewish Dean of the New York University School of Law admitted in the New York Times, "When I see a government-supported crèche, I suddenly feel as if I have become a stranger in my own home, to be tolerated only as long as I accept dominant religious values."   He added that "[w]hen government, at any level, lends its support to a Christian religious observance, Jews and other non-Christians are automatically excluded."
In other words, the public display of a religious symbol, the crèche, engendered social divisions based largely on religious differences, and such divisions were manifested in widespread continuing public support for the display.  Of course, the Burger majority opinion disregarded such religiously-inspired political divisiveness.  But frequently, as in this case, symbols make a difference.  In fact, as the lawsuit and the resultant backlash in Lynch demonstrated, not only might public displays of religious symbols create religiously-inspired political divisiveness, but also the legal and political battles that ensue because of such displays might generate additional (and more fervent) divisiveness.  By ignoring divisiveness and its potential damage to the pluralist democratic process, the Court cultivates exclusionary practices reminiscent of republican democracy.  The Court fosters a return to the 'good ol' days' when, in practice, white Protestant values were deemed virtuous and white Protestant goals were enshrined as the common good.  Protestant Bible reading and prayers in the public schools?  Why not?
Why not?  Because the public performance of religious rituals, the public recitation of religious tenets, and the public display of religious symbols contravene the political equality that undergirds pluralist democracy.  The dissenters in Van Orden v. Perry, which upheld the Ten Commandments display etched on a monument in the Texas state capitol monument park,  emphasized how that religious display struck at the heart of political equality.  Souter's dissenting opinion, joined by Justices Stevens and Ruth Bader Ginsburg, underscored "the simple realities that the Ten Commandments constitute a religious statement, that their message is inherently religious, and that the purpose of singling them out in a display is clearly the same."  Thomas admitted as much in his concurrence:  "Of course, the Ten Commandments are religious-they were so viewed at their inception and so remain.  The monument, therefore, has religious significance."  Stevens's dissent, joined by Ginsburg, explained that the Ten Commandments display was not only religious but sectarian on two accounts.  First, the display favored Christianity and Judaism because the Ten Commandments is "'a sacred text'" for those religions (and Islam) but not others.  The Ten Commandments prescribe "a compelled code of conduct from one God, namely, a Judeo-Christian God, that is rejected by prominent polytheistic sects, such as Hinduism, as well as nontheistic religions, such as Buddhism."  Second, within the religions that accept the Ten Commandments, "different religions and even different denominations within a particular faith" subscribe to "distinctive versions" of it.  The state of Texas necessarily chose to prioritize one particular version of the Decalogue by displaying it on a monument.  In fact, one purpose of the monument display was proselytization, to guide youth by inspiring "renewed respect for the law of God."  Finally, Stevens concluded by emphasizing that the governmental display of the Ten Commandments would undermine political equality by promoting religiously-inspired political divisiveness.
Recognizing the diversity of religious and secular beliefs held by Texans and by all Americans, it seems beyond peradventure that allowing the seat of government to serve as a stage for the propagation of an unmistakably Judeo-Christian message of piety would have the tendency to make nonmonotheists and nonbelievers "feel like [outsiders] in matters of faith, and [strangers] in the political community."  "[D]isplays of this kind inevitably have a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal."
In McCreary, invalidating displays of the Ten Commandments in county courthouses, Scalia's dissent candidly admitted that such a public display acknowledges a governmental preference for certain religions (monotheistic ones) over other religions (polytheistic ones).  From Scalia's viewpoint, however, the Constitution allows the government to grant its imprimatur to certain religions.  Equality be damned!

Step


* * * *
Stephen M. Feldman
Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science
University of Wyoming
307-766-4250
fax: 307-766-6417
sfeldman at uwyo.edu
________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Ira (Chip) Lupu [iclupu at law.gwu.edu]
Sent: Friday, April 23, 2010 11:44 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 sec!
 ta!
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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>> >> >
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