Establishment Clause and Endorsements

[Abner Greene]

     Law professors are funny, no?  We can think of wonderful
hypotheticals, but sometimes miss social reality.  When a powerful
majority religion uses governmental power to advance that religion, there
is, in my view, a problem dissimilar to either of Michael McConnell's
hypos.  A Christian judge insisting on putting a religious symbol above the
bench in his courtroom is not like eagles (which are not intentionally
representative of or dismissive of any religion) or multiple weekends
celebrating the variety of religions.  It is a hegemonic use of power.
Whatever one might think about other cases -- eagles, multiple weekends
celebrating the variety of religions, menorahs in Pittsburgh -- the
intentional use of a Christian religious symbol by government tends
toward the establishment of religion, in this country, as of 3/11/97.  (I
bracket here the Judeo-Christian, rather than Christian, use of the Ten
Commandments.)
     There seem to be two reasons why the judge might do what he did.
One is to promote the powerful religion.  The other is to ward off the
impression that government is hostile to religion.  Let's assume the latter
is the case here.  Does that make the promotion of the dominant religion
any less?  The rule against concentrated power is thick in our
constitutional order.  It runs through the structural provisions and through
the rights provisions and through much statutory law.  The establishment
clause is, in my view, a cornerstone of this rule.  When we say to
Christian governmental officials that they may not use their offices to
promote their dominant religion, it is SIMPLY UNREASONABLE for them to
view this as hostility toward religion.  Rather, they should understand
this as part of a broad constitutional commitment to breaking up
concentrated power.
     Sorry about the tone here.  I just am constantly baffled by the
argument that forbidding dominant religions from using governmental
power in ways that promote their religions represents hostility toward
religion.  If I am correct, and the rule is nothing more than the extension in
the religion clauses of a rule against concentrated power found
throughout our constitutional order, then this should be accepted gladly
by all as a brilliant American device for protecting pluralism.
     --  Abner Greene, Fordham Univ. School of Law