FW: descriptive scholarly accounts of religious identityandjudicial behav...

Sat Apr 24 11:27:31 PDT 2010

Considering the actual case which began this thread, it is not apt to describe as hecklers those who object to the war memorial cross.  Suppose my nonchristian ancestor was among the fallen.  Suppose my nonchristian child's name were placed on a war memorial decorated with a cross and only a cross.  Suppose the military awarded me a decoration bearing the insignia of a faith not my own.  These situations to me would be a direct insult, a substantial burden from which I could not honorably avert my eyes--or would you have me refuse the medal and sue to have my child's name removed from the wall? 
Daniel Hoffman 

--- On Sat, 4/24/10, Rick Duncan <nebraskalawprof at yahoo.com> wrote:

From: Rick Duncan <nebraskalawprof at yahoo.com>
Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...
To: conlawprof at lists.ucla.edu
Date: Saturday, April 24, 2010, 2:00 PM

Paul says:"The problem with Rick's argument is that in "running to defend" religious arguments he runs smack into the First Amendment which says that the monument should never have been up there in the first place."

But of course the Establishment Clause says no such thing about passive religious displays being forbidden merely to protect those who choose to heckle religious displays rather than avert their eyes. The wrongdoer is the judicially-created endorsement test, not the Establishment Clause.

Just as the willing audience for a gay pride display in a public school suffer a free
speech injury when govt tears it down to appease hecklers, the willing audience
for a war memorial or holiday display suffers a free speech injury when religious
displays are torn down to appease hecklers. In both case, those who dislike
the displays could have merely averted their eyes rather than deprive the willing
audience of their right to view the displays.

The problem with the endorsement test is it takes liberty from one group to appease
another group's mere interest in not being offended. The heckler's suffer no serious harm to any liberty interest (only the slight burden of averting their eyes), but those who are deprived of a neutral public square, when religious displays are cleansed from a
public square open to all other displays, suffer a serious burden on their equal right
to be a willing audience for govt displays they would like to see.

Cheers, Rick

 "And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)

--- On Sat, 4/24/10, Finkelman, Paul <paul.finkelman at albanylaw.edu> <Paul.Finkelman at albanylaw.edu> wrote:

From: Finkelman, Paul <paul.finkelman at albanylaw.edu> <Paul.Finkelman at albanylaw.edu>
Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...
To: "Rick Duncan" <nebraskalawprof at yahoo.com>, "Hamilton02 at aol.com" <Hamilton02 at aol.com>, "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>
Date: Saturday, April 24, 2010, 10:42 AM

The problem with Rick's argument is that in "running to defend" religious arguments he runs smack into the First Amendment which says that the monument should never have been up there in the first place.  

*************************************************
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu
www.paulfinkelman.com
*************************************************

From: Rick Duncan [nebraskalawprof at yahoo.com]
Sent: Saturday, April 24, 2010 11:59 AM
To: Hamilton02 at aol.com; conlawprof at lists.ucla.edu; Finkelman, Paul <paul.finkelman at albanylaw.edu>
Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...

Paul Finkelman writes:

To Rick's comment below, we might respond:  "No one's liberty is harmed by remoing a religous display from public property.  If you want the monument then put it up on your property; you have liberty to do that.  In fact, Rick, my liberty is harmed when you take my tax dollars and the political power of my country, and use it to support anyone's religion, whether it is yours or mine.  BUt, if you put the monument on your land than it affects no one's liberty.  I am simply don't comprehend the argument that your religious liberty depends on using public land and public money to promote your faith.  This is precisely what the First Amendment is designed to prevent. 

More to the point, why would anyone who takes religion seriously want to have the government putting up religious monuments?  Do you want your religous values subject to who wins an election?

Suppose a group of dissenters attacked a "gay pride" display put up by school authorities in a public school. Under pressure from the dissenters, the school board ordered that the display be taken down.

Would Paul view this decision-under-fire as a good one, protecting the right of the dissenters not to be offended by controversial govt displays? Or as amounting to a heckler's veto denying those who wish to see the display their right to be a willing audience for the governmental display?

As to Paul's second question, I don't particularly want govt to put up any
displays, religious or secular. I prefer a quiet government.

But when someone attempts to cleanse one of many govt displays from the public square precisely because it has religious significance,
I will rush to defend it because if we care about neutrality in the public square
religious displays are no less appropriate than secular displays. If we are going to decorate
the public square, we should do so with a thousand points of light (both secular and religious) not with 500 points of secular light. That is not neutral. It sends the message that religious holidays and symbols are not part of our public culture, which of course is
simply neither neutral nor true.

Rick Duncan
cleansed from the public square 

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)

-----Inline Attachment Follows-----

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20100424/3b35a00e/attachment.htm>