Religious Displays and Status Competition.

[Eugene Volokh]

    There's much to what Jack says, but I thought I'd mention a few
points that seem to be implicit in his assertion:

    1.  Claims of offense or exclusion must be evaluated for
reasonableness.

    Jack is, I think correctly, asking not whether *some* people will
interpret the absence of a prayer as dispreferring religion.  Rather,
he's asking whether this absence "state[s]" this, which I take it is
(more or less) a question of whether reasonable people should (or at
least can) reasonably interpret the absence of prayer that way.  (I'm
assuming that he's *not* focusing purely on the speaker's intent.)

    2.  The inquiry into the meaning of the ban on the prayer
turns on whether the prayer was itself constitutional.

    Again, I think this point has to be right to some degree -- if we
conclude that the prayer is itself unconstitutional, reasonable
people should probably not interpret any ban of it as condemnation of
religion, only condemnation of unconstitutionality.  But how do we
determine whether the prayer is itself unconstitutional?

    At any point, the government has a choice:  To have a prayer or
not to have a prayer.  Either one may be alienating to some people,
and may convey some message to them.  I'm not sure how we can
properly factor any a priori judgments about unconstitutionality into
this message if the very thing we're trying to do is determine
whether either practice is constitutional.

    3.  It's easy to shift from one definition of "meaning" to a
subtly different one.

    Jack starts by asking what the prayer "states," but then goes on
to ask whether we should "*necessarily* understand" a decision to
eliminate the prayer as a particular "statement."  Well, if the
question is on whether we should *necessarily* understand an action
as stating something, the answer is generally no.  Certainly most
prayers are ambiguous enough that one can indeed understand them in
lots of different ways.  Is the inquiry indeed whether
    (1) the action should necessarily be understood as stating X?
    (2) most reasonable people would understand the action as stating
X?
    (3) some reasonable people would understand the action as stating
X?
    (4) some people, reasonable or not, would understand the action
as stating X?
    (5) the action "states" X in some absolute sense that doesn't
turn on its likely meaning (a position that tentatively strikes me as
not entirely coherent)? or
    (6) one sort of inquiry for prayers but a different one for bans
on prayers?

Jack Balkin writes:

>     Does the absence of a prayer during a court session state that
> America is a secular society and that religious people are dispreferred?  I
> don't find this conclusion at all obvious.  One might argue that the removal
> of a prayer that had been regularly uttered there for some time creates
> that impression.  But this argument seems to beg the question whether
> the prayer should have been going on in the first place.  If the prayer
> was itself a violation of the Establishment Clause, then its removal cannot
> rightfully be understood as a violation (because an endorsement of
> atheism), can it?  And even if the prayer was  -not- a violation of the
> Establishment Clause, should we necessarily understand any decision to
> cease regular prayer as a statement that religious people are
> dispreferred in American society?  I don't think so.  It would depend on
> why the practice was ended.
>      Just as Michael doesn't want to defend all sectarian religious
> observance at public events, I don't want to insist that all ceremonial
> Deism violates the Establishment Clause.  But I think that it is
> presumptively suspect.


                               -- Eugene Volokh, UCLA Law