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

Sat Apr 24 15:49:06 PDT 2010

Is this really what the endorsement test comes down to? One side saying, "well consider this hypothetical" and the other side saying no, consider this hypothetical."  One side says that it seems clear (based on their gut instincts, I guess) that some practice constitutes endorsement of religion, and the other says that it doesn't (again, based on their gut instincts). These assertions, seemingly a product of mere ideology and policy preferences, do not constitute evidence worthy of law. It would seem that courts would have to offer better evidence than that for their conclusions. Wouldn't we expect courts to analogize from previous cases, discuss original understanding of the text, examine historical traditions and practices, and (perhaps!) examine empirical data about what people today think about government practices such as that being challenged in this case (especially if the endorsement test is concerned about what a reasonable person today thinks about the government's action). If the endorsement test is nothing more than a string of hypotheticals and claims of "this is what I think and that is what you think" about some government action, then the Emperor truly has no clothes.

Best,
Mark
________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Robert Sheridan [rs at robertsheridan.com]
Sent: Saturday, April 24, 2010 4:04 PM
To: conlawprof at lists.ucla.edu
Subject: Re: FW: descriptive scholarly accounts of      religious       identityandjudicial behav...

Here's what I don't get:   How can the religious right talk in terms of "their" religion when it seems to be divided into so many different competing sects, each existing because of some important disagreement with the other?

The history of religion suggests that there cannot be, for any great length of time, a religious doctrine impervious to splitting off.  Great empires have been unable to control religion.

How does the religious right (RR) propose to deal with life if and when they get their way?

What do they say to those who oppose what they urge?

Will it make for a more harmonious society, or less?

For some reason we don't seem to hear about this, although I may have missed the discussion.  We hear, "My ox is gored, you're disrespecting me," when the RR is told it cannot have its way in the display of favored symbols in public places, but not what their overall program is.

Why not forthrightly lay out the program so we can see the full dimension and its implications.  It might do both sides a lot of good to see what we're talking about.

rs

On 4/24/2010 12:40 PM, Finkelman, Paul <paul.finkelman at albanylaw.edu><mailto:paul.finkelman at albanylaw.edu> wrote:

The establishment clause does not say "Congress shall make no law actively respecting an establishment of Religion."  Or did I miss read something somewhere?

There is nothing "passive" about using my tax dollars to support your religious beliefs.  This was Madison's basic point in his remonstrance to the state of Virginia and it still holds true.  If is on public land it is tax money. What about that is so hard to see?

Here is what I don't get. Why are you so determined to use the government to proclaim your faith in God?  If you were serious about you political views and your religious views, you would be demanding that the government stop exploiting your faith for political purposes.  Alternatively, you really want to use the government promulgate your faith.  That is what the esablishement clause prohibits, whether it is active or passive.

*************************************************
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<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
*************************************************

________________________________
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Rick Duncan [nebraskalawprof at yahoo.com<mailto:nebraskalawprof at yahoo.com>]
Sent: Saturday, April 24, 2010 2:00 PM
To: conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>
Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...

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><mailto:paul.finkelman at albanylaw.edu> <Paul.Finkelman at albanylaw.edu><mailto:Paul.Finkelman at albanylaw.edu> wrote:

From: Finkelman, Paul <paul.finkelman at albanylaw.edu><mailto:paul.finkelman at albanylaw.edu> <Paul.Finkelman at albanylaw.edu><mailto:Paul.Finkelman at albanylaw.edu>
Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...
To: "Rick Duncan" <nebraskalawprof at yahoo.com><mailto:nebraskalawprof at yahoo.com>, "Hamilton02 at aol.com"<mailto:Hamilton02 at aol.com> <Hamilton02 at aol.com><mailto:Hamilton02 at aol.com>, "conlawprof at lists.ucla.edu"<mailto:conlawprof at lists.ucla.edu> <conlawprof at lists.ucla.edu><mailto: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<http://www.paulfinkelman.com/>
*************************************************

________________________________
From: Rick Duncan [nebraskalawprof at yahoo.com<mailto:nebraskalawprof at yahoo.com>]
Sent: Saturday, April 24, 2010 11:59 AM
To: Hamilton02 at aol.com<mailto:Hamilton02 at aol.com>; conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>; Finkelman, Paul <paul.finkelman at albanylaw.edu><mailto: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)

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