Religious Displays and Status Competition. -Reply

[Mark Tushnet]

Perhaps the interesting status competition
analysis of public prayers, etc., is misdirected
as a result of our interest in ideas of
endorsement.  As I understand Stone v. Graham and
the school prayer cases, they apply a different
test, which I formulate (roughly) in two parts:
(1)  What public goal is [sought to be] advanced
by the practice at issue?  (2)  Can that goal be
described without making essential reference to
God?

Judge Moore asserted that he posted the Ten
Commandments "to acknowledge God," which seems to
end the inquiry (unless the test is whether there
might exist a public goal, etc., even though the
sole decision-maker had a different goal in mind).
 Stone is trickier, but in the Court's view the
goal of inducing reflection on the origins of
secular legal codes was to be achieved by, in its
terms, the "veneration" of sacred texts.



Mark Tushnet
Georgetown University Law Center
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