Establishment Clause and Endorsements

[Eugene Volokh]

    I apologize if I've misunderstood Alan Brownstein's suggested
proposal.  I just looked back at his original message, and I see that
his suggestion was that

    "if we believe that a message may be harmful or wrongful if it is
    interpreted a certain way, the question should not be whether
    everyone would agree with any one interpretation of the message.
    It should be whether the message can and will be reasonably
    understood by some significant part of the community (a part
    of the community that counts) as communicating the problematic
    meaning."

In retrospect, I think I may have focused too much on the "by some
significant part of the community" aspect of his test, and not enough
on the "reasonably understood" part.  Indeed, Alan's test does
recognize that only "reasonable" objections count, and therefore
leaves open at least the possibility that indeed "government speech
"[need not] be `purged of all symbols that might be remotely tainted
by religiosity.'"

    Nonetheless, thinking again about the matter, I'm still troubled
by the test, though perhaps now for a different reason:  How we
determine whether something "will be reasonably [understood] by some
significant part of the community . . . as communicating [a]
problematic meaning."

    1.  The notion here, I take it, is that there are many reasonable
ways of interpreting a statement; A and B can both be reasonable
people, and yet interpret the statement differently.  And indeed the
libel analogy does demonstrate this:  If A and B have different
knowledge of some unstated facts, for instance, they may interpret the
same statement differently.

    But in the murky area of symbolism, the situation is more
complicated -- not because it's harder to have competing reasonable
intepretations, but because it's easier.  A flagburning may mean one
thing to you and another to me, depending on our life experiences, on
our varying tendencies to assume (or not to assume) charitable
explanations, on our assumptions about contexts, and so on.  If I
tell you "I interpreted that flagburning -- or Christmas tree or
Thanksgiving festival or what have you -- as meaning X," under what
circumstances would you be able to say that I was being unreasonable?

    I suppose that if I told you that the flagburning or the Christmas
tree meant "There's a 40% off sale on dishware at Robinson's," you
might be able to question the reasonableness of my statement.  But
why would it ever be unreasonable for, say, a militant atheist --
who I believe may well be representative of the broader group of
militant atheists -- to say "I think all Christmas trees, Christmas
lights, Thanksgivings, Easter egg hunts, and for that matter
celebrations of holidays named after Reverends who used distinctively
Christian arguments in their rhetoric are all endorsements of
Christianity"?

    One possible answer is that we might think he misguessed about
the likely intentions of the speaker:  It might be unreasonable to
assume that a city council, in putting up Christmas lights, is
meaning to endorse Christianity.  But unless the intentions of the
speaker are the *only* inquiry, what do we say to his argument that
"I'm not talking about the intentions of the speaker, I'm talking
about the message that this sends to me, based on my life experience
as a member of a group that feels itself to be quite oppressed by
Christian America"?  And surely the whole point of the "reasonably
understood by any significant part of the community" inquiry is to
recognize that various groups have different perspectives based on
their experiences, and to accept those perspectives -- and not the
perspectives of us in the majority -- as the proper benchmarks.

    Now perhaps this is just an aggravated version of the problem
inherent in any endorsement inquiry:  That any inquiry into how a
reasonable observer would perceive an ambiguous symbol is doomed.
Perhaps that may be the view that Michael McConnell would take,
and he might well be right.  But even if there's something
salvageable in an inquiry into the meaning to "the reasonable
observer," isn't it much, much harder -- perhaps impossible -- to
apply a "reasonable understanding of some significant group"?

    Or isn't it at least much harder to apply such a standard in a way
that does *not* purge the public sphere of all religious speech?  To
return to, and highlight, a question I touched on before:

    For what arguably religiously linked public speech can we not
    imagine any group which might "reasonabl[y] understand[]" to be
    an endorsement?  To start things going, let me give the
    following examples:  Christmas trees, Christmas lights,
    Thanksgiving celebrations, an Easter egg hunt, a Santa Fe
    history festival (which necessarily includes some religious
    components, and of course the name Santa Fe), or Christian-
    themed paintings displayed in a city museum.

    2.  Finally (and more briefly), I agree that it's problematic to
infer much endorsement or disapproval from silence.  The fact that the
American master holiday schedule doesn't have any specifically
Jewish, Hindu, Moslem, or atheist holidays doesn't, in my view,
disapprove of those religions.

    But let me ask:  Could one possibly infer more disapproval not
just from silence, but from a rule *explicitly mandating* silence?
That, after all, is the consequence of a rule that bars government
endorsements of religion -- it explicitly mandates silence on
particular topics.

    Now if we're confident that this silence is indeed
constitutionally required, then it's required.  My point, though, is
that when we recognize the possibility of error, we shouldn't be too
willing to err on the side of mandating more silence.  If, for
instance, to take an extreme situation, the public square *is* wrongly
purged of all religious symbols by Supreme Court decision, then that
seems to me a disapproval of religion, much more than if a city does
the same on its own.  (Of course, if we conclude that there's no
chance of error, and the Estab Cl really does require such purging,
then that's constitutionally required, and no-one can complain, at
least on constitutional grounds.)

    I'm not at all confident of my views here:  There is a certain
artificiality, I freely recognize, in distinguishing the "voluntary"
silence of a city -- or for that matter the silence of the Congress,
which hasn't announced any atheist or Jewish or Moslem holidays --
from the silence mandated by the Court.  Still, this kind of
nationwide forcible purging does seem to me to carry a very special
brand of disapproval.  And while I can see that lesser purges would
carry a lesser disapproval, it still (tentatively) appears to me that
any purge that errs on the side of going too far may threaten Estab
Cl values as much as any purge that errs on the side of going not far
enough.

                               -- Eugene Volokh, UCLA Law