Establishment Clause and Endorsements

[Eugene Volokh]

I wrote:

> << Even when we set aside continued funding, and have just a government
>  proclamation that "The Official Religion of the United States is Southern
> Baptism," that still sounds like a pretty clear establishment, again because
> the government is uncontestedly seen as endorsing a certain religion over
> others. >>

Jim Henderson responded:

> Setting aside notions of "endorsement," do you truly find an establishment
> problem with a completely precatory statement such as in your example.  In
> other words, if the government does not then condition benefits, enhance
> punishments, coerce support or participation, etc., you would still find the
> bare declaration to violate the Establishment of Religion Clause?
>
> In that case you would consider the Supreme Court's decision the Rector of
> the Church of the Holy Trinity case ("we are a Christian nation") to violate
> the Clause?  In that case, does Justice Douglas' remark, "we are a religious
> people," violate the Clause?  In that case, did Justice O'Connor, proponent
> of the ballyhooed endorsement test, violate the Establishment Clause when she
> wrote a letter stating that this was "a Christian Nation"?

    I think that a precatory statement that is adopted by the
government, is clearly intended to endorse a religion, and as a
result is uncontroversially perceived as doing this, would be an
Estab Cl violation.  A letter from a Justice, I believe, falls within
the Justice's Free Speech Cl rights, being written in her capacity as
a citizen -- albeit one who holds public office -- speaking for
herself and not as Justice speaking for the Court.  (While I've heard
of the letter, I don't know about the exact circumstances of its
writing, and my understanding is that it may have been misconstrued.)

    The other examples would trouble me if the Court was making a
statement endorsing the propriety of a certain religion, or asserting
that it was the official religion.  "We are a Christian nation" and
"we are a religious people" may well be sociological observations
(and, if so, probably accurate ones, especially at the same time);
I'd be much more hesitant to consider them unconstitutional
endorsements.  There can, of course, be arguments that they are, but
they're much less clearer than when the intentions of the speaker are
unambiguous, and the statement is therefore uncontroversially
understood as an official endorsement.


                               -- Eugene Volokh, UCLA Law