Establishment Clause and Endorsements

[A.E. Brownstein]

                I would like to try to respond to Eugene Volokh and Michael
McConnell's comments of March 10 and 11 respectively.

                Eugene questions some of my defamation analogies and my
suggestion that "facially religious" speech raises a different kind of
establishment clause and endorsement problem than speech about scientific
theories that may conflict with religious beliefs. He also questions my
analogy to the special treatment provided to race specific classifications.

                Part of the reason I argue that "facially religious" speech
by government is to be treated differently is, as McConnell also notes, that
the first amendment treats religion as something special. I don't think the
establishment clause suggests that every time the government says something
that offends someone's religious sensibilities, the establishment clause is
violated.
The establishment clause prohibits state communications that (1) endorse a
religious faith or principle and in doing so communicate a message of
non-endorsement to people of other faiths or (2) repudiate a religious
belief in religious terms (also communicating a message of endorsement and
non-endorsement). I understand that people may disagree about whether the
state's proclamation of the truth of a particular religious faith
constitutes an establishment of religion but the conceptual link between
endorsements and establishments seems pretty clear - at least to me.

        I sympathize with the discomfort of religious people whose beliefs
are challenged by the government's teaching of science or other
non-religious disciplines, but I see no connection between that kind of
government conduct and an establishment of religion.

        The reason I use defamation and equal protection examples in
discussing the endorsement test isn't because I believe these are precisely
similar analogies to establishment clause concerns. I use these analogies
because they demonstrate something important about the way we develop
constitutional doctrine. In developing constitutional standards we consider
the harm we are trying to avoid and the disutility or costs that we incur in
trying to avoid specific harms.

        In the area of defamation the common law elements of the tort and
the privileges that restrict the scope of the tort do not serve only to
identify those circumstances in which a reputational injury is likely --
they also try to draw lines that insure that speech that deserves to be
expressed is not unduly chilled. The constitutionalization of defamation
actions obviously reworks that balance - but the key point is that we have
to look at the harm that the speech at issue may cause and the burden on
speech that defamation actions impose to define our legal and constitutional
standards. I think we do this all the time in talking about first amendment
doctrine. We do not protect abstract advocacy of the violent overthrow of
the government or of interference with the war effort because we believe
there are no risks and injuries that may result from such expression. We
limit government restrictions on such speech because we are worried that
legitimate criticism of government may be chilled or stiffled by the reach
of such laws.

        The same analysis applies to equal protection doctrine. If we are to
believe the Court in cases like Washington v. Davis and Arlington Heights,
we do not seriously review laws that disproportionately impact racial
minorities to a significant degree in part because we believe those laws are
less constitutionally problematic than facially discriminatory
classifications. The neutral law risks less harm. But at least as important
a reason for the more deferential review of neutral laws is the fact that
too many laws would be subject to rigorous scrutiny under a disproportionate
impact test alone. We accept some risk of unremedied inequality to avoid
having a doctrine that sweeps too broadly and interferes with too much
necessary and legitimate legislation.

        The same argument applies to government speech and the establishment
clause. A rule that prohibits all speech on any subject that offends the
religious sensibilities of any person imposes too great a burden of silence
on government. But that by itself does not justify only restricting facially
religious speech. There are value judgments that underlay the rest of the
balance. If we continue this dialogue I will argue that the risk of
endorsement and establishment of religion is greater when the government
engages in religious speech. I also think there is less damage done to the
state's ability to pursue legitimate goals if it is only restricted from
engaging in religious expression that endorses particular faiths. (That is,
government goals other than endorsing sectarian beliefs are not seriously
undermined by prohibiting religious endorsements.)

        Michael McConnell's hypo's are great, but before I get to them I
want to question two of his introductory remarks. I know Michael has been
very critical of the endorsement test, but I have a hard time figuring out
why he believes this test (of all the problematic constitutional standards
the Court has come up with) is so uniquely "inscrutable."

        Suppose the government puts up big signs on almost every public
building or other kind of state property that can hold a sign. Each sign
says: There is only one true religion. It requires the worship of Baal. I
think that is a self evident endorsement of a specific religion. (and lets
assume that the majority of individuals in the jurisdiction just for the
sake of plausibility are Baal worshippers.) Am I correct in understanding
Michael's position to be that for us to understand this to be an endorsement
of religion we have to know that "the message [is] understood by those who
seek to dessiminate it as taking a position on a religious question."

        If that is correct, what happens if we ask the government officials
who ordered the posting of the signs and they say that they do not intend
the signs to communicate the message that the government is taking a
position on a religious question. They are not endorsing a religion. The
message they are trying to communicate is that people who believe in Baal
think that Baal is the only true deity and that everyone should worship him.
That's not an endorsement. It is just a descriptive truth. Must that end our
constitutional inquiry? If so -- is the problem that we do not think we can
sensibly understand this language to constitute an endorsement of religion?
And if we can not conclude that this message is an endorsement because some
people, including those who are dessiminating it, claim that the signs are
intended to communicate a different message, does this same limitation apply
to all other legal evaluations of the content of speech. Is it always true
that we can not reach legal conclusions about the message being communicated
by speakers other than by asking the speaker what he or she is trying to
say? Are all other approaches impossible because of the differing
perspectives that may exist as to what is being communicated?

        On to Michael's eagle question. This is a truly great hypo. It
forces me to consider whether the eagle symbol is facially religious speech
when no one knew that eagles were a religious icon when the symbol was
displayed. It also raises the question of whether a symbol can be understood
to be an endorsement when it may have been impossible for the state speakers
to know of the religious significance of the icon they selected. Can an
audience reasonably experience government speech as an endorsement of
religion when the government could not have intended to communicate that
message? The problem is also especially difficult because there is such a
long historic tradition recognizing the eagle as an American symbol. I would
probably conclude that the eagle is not an endorsement because of its very
long secular pedigree. It is a tough case but a relatively unusual one.
Certainly everyone understands today that crosses and creches and stars of
david and menorahs are religious symbols.

        Let me describe a true case that places the issue in a slightly
different light. The school symbol of Davis High School, the only high
school in town, is a blue devil. The symbol looks like a devil. The story
goes, however, that the name was taken from a famous French regiment in
World War I. The French "Blue Devils" were apparently pretty tough fighters
and somebody thought that the Davis High Football team would be inspired by
that kind of name.

        Some people wrote letters to the editor of the Davis Enterprise
protesting the use of a devil as a school symbol. They argued that their
religious sensibilities were offended and they felt that their kids should
not have to be cheering devils to enjoy after school activities. The
response was massive and one-sided. Most people ridiculed their concerns.
They were criticized for disturbing a popular tradition.

        I wasn't offended by the "blue devil" but I thought that the symbol
of a devil was close enough to a religious symbol to raise a legitimate
argument. I also remembered stories about high schools in the South that had
Confederate flags as symbols and the feelings of black students attending
such schools. I did not think the community would lose very much if the high
school picked a different symbol. Not many people agreed with me.

        But I got the feeling from some of the people who did that there
were more people bothered by the "blue devil" than were willing to speak up
about it.
I think sometimes that we mistake fear of popular disapproval for
acquiescence. The lack of division that may be the apparant result of
precluding constitutional challenges to state endorsements of religion may
reflect the silent resentment of a subordinated minority more than anything
else. When we say that we want to avoid religious divisiveness, I don't
think we should view that kind of quiet as our goal.

                                        Alan Brownstein
                                        UC Davis