Establishment Clause and Endorsements

[Eugene Volokh]

    1.  Whom we see as the hegemon or what we see as social reality
depends a lot on where we sit.  Today, a Christian judge putting a
religious symbol above the bench in his courtroom is probably an
ultimately futile gesture of defiance of the higher courts' hegemonic
use of power.  (The higher courts' actions may actually be correct,
but that doesn't make them less hegemonic.)  It may also be an aspect
of one geographic region's defiance of what many of its residents
perceive as the hegemonic power of other regions.

    2.  "Tends toward the establishment of religion" is troublesome
as well, though for other reasons.  Much depends, it seems to me, on
what "establishment of religion" -- the thing that we all agree the
Constitution prohibits -- means, and how much "tendency" is enough to
make an action unconstitutional.  Now perhaps frequent government
speech on behalf of a religion or a group of religions or all
religions would indeed be an "establishment of religion," but that
would take a bit of proof; and, that still leaves the question of how
much tendency is too much.

    3.  Finally, as to "SIMPLY UNREASONABLE," I'm more than a little
puzzled here.  Much of the discussion has stressed how different
people view different things differently.  Some Christians might take
one view of a sign, Jews another, atheists a third, and so on.

    How can we be so sure that it's "SIMPLY UNREASONABLE" (in
capitals!) for people to interpret one (highly contested)
interpretation of the Establishment Clause as "hostility towards
religion"?  How can we be so sure that people "should understand
this" as part of a broad constitutional commitment to breaking up
concentrated power?  What if they just don't agree with the extremely
contestable and contested notion that this is the right way of
interpreting the Establishment Clause?

    Now ultimately I suppose I could say that their interpretation of
the action is "unreasonable" in the constitutional sense -- not
"simply" unreasonable, nor unreasonable in capitals, nor even
unreasonable in the lay sense of the word.  If the Establishment
Clause turns on symbolic meanings (and whether they communicate
endorsement or disapproval), I think we must look to how a
"reasonable person" would interpret the meaning.

    But

    A)  This approach works only if we do indeed conclude that the
inquiry is into the reactions of the reasonable person -- if we
eschew that for the meaning of the symbol, and look instead to the
reactions of any sufficiently sized group, then I think we have to do
the same for the "meanings" of any Establishment Clause rule.

    B)  People who use this approach have to, I think, realize that
it involves a very stylized interpretation of "reasonableness."

    C)  Perhaps the very weakness of this approach shows us that it
will always be unstable and always a source of immense controversy
(which exceeds only the controversy created by an approach that gives
a veto power to any sufficiently sized group).  Whenever we get into
the business of condemning people's interpretations as "unreasonable"
-- even if we qualify the term much more than the post to which I'm
responding did -- then who will have the better claim that the other
person is acting as a "hegemon"?

Abner Greene writes:

>      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
>

                               -- Eugene Volokh, UCLA Law