Establishment Clause and Endorsements

[Sanford Levinson]

Re Michael McConnell's two wonderful hypotheticals:

>(1) The U.S. government designates the eagle as the national symbol.
>Unbeknownst to the government, a minority religion recognizes the
>mountain lion as its god, and believes that the mountain lion is in
>eternal struggle with the anti-god, who is the eagle. To them, the
>eagle symbol is therefore an endorsement of the competing religion,
>and is extremely offensive. They therefore claim that designation of
>the eagle is an establishment of religion. How should this claim be
>analyzed?
>
The first thing I'm tempted to do, being a law professor, is to extend the
hypothetical somewhat by adding that part of the sects creed is that
handling objects that include representations of the eagle is sinful, so
that they cannot handle the coinage (which, by stipulation, includes
representations of national symbol) or carry draft cards (").  Among other
things, this would make it exceedingly difficult to use toll bridges, etc.,
let alone being subject to O'Brien-like punishment for failure to have one's
draft card in one's possession.  Would violate RFRA to extract the toll or
to punish for failure to carry?

Now, to answer Michael's question, my intuitions tell me that the sect
should lose the establishment claim, that "endorsement" *has* to include
some element of overt intent or the kind of torts-level
thoughtlessness-that-counts-as-negligence before it comes into play.  But
then, I suppose, one might ask if it is "thoughtless" to keep using the
eagle as the symbol after being informed of the religious consequences.
(This is, perhaps, like retaining the team names Braves or Indians (or
Rebels) after being told that they offend.)  I would be sympathetic to the
argument that a society *ought* to try to minimize the amount of needless
offence, and changing national symbols (or team names) is relatively
minimal.  But would this mean, as a practical matter in a wildly
multicultural society, that one could have *no* symbols or names, because,
among our 250 million fellow Americans, there will be at least one to object
to anything that might be suggested?  This seems unacceptable as a
conclusion.  Maybe I should take refuge in a Sager-like conception of an
underinfornced Constitution.  I.e., maybe the "conscientious legislator"
should feel a duty to vote to get rid of the eagle, but a Court should stay
its hand, as it (properly) does with what I continue to think is the
patently unconstitutional "In God We Trust."

(I suspect this is not a very good answer to a *very* interesting question.

>(2) The City designates 12 weekends to celebrate the culture and
>contributions of various subgroups within the community. One of the
>groups so recognized is the population from the Indian subcontinent.
>As part of the celebration, the City erects various Hindu religious
>symbols; on account of the need to be respectful, it does not
>surround these symbols with talking wishing wells, raindeer, or the
>like. Some people suggest that negative aspects of Indian/Hindu
>culture be depicted, such as the evils of the caste system, but this
>suggestion is rejected on the ground that the purpose of these
>weekends is to celebrate the contributions of the subgroups, not to
>provide a full-blown education about their good and bad points. An ex-
>Hindu finds the public display of these religious symbols to be an
>endorsement, and files suit. How should it be analyzed?
>
Again, one modification:  Would a Muslum (or Buddhist) be entitled to raise
any objection to the facile labeling of India as a "hindu country"?
(Imagine a display about Israel that included *only* Jewish symbols.  This
would, I think, be far more defensible than one about India that included
*only* Hindu symbols, but I still think it would be highly objectionable
simply to wipe out from consciousness the fact that Israel, whatever its
official ideology, is *not* an exclusively "Jewish country.")

As far as "endorsement" is concerned, though, I think it would be
exceedingly difficult for anyone to make the credible claim that the state
is endorsing Hinduism, especially if the twelve weekends are indeed
pluralistic and at least some of them devoid of religious symbols entirely.
I confess I would be more disturbed if all of the displays included
religious symbols, because at that point one might infer that the state is
saying that "true" communities, or at least communities worth celebrating,
all include an overtly religious dimension.

Sandy Levinson