Prof. Steven D. Jamar, Dir. LRW Program
sjamar at LAW.HOWARD.EDU
Mon Jun 8 15:14:36 PDT 1998
Oh-oh! I had better rethink my position again. Rick and I agree on
something. . . .
> What really offends *me* is the stigmatization of religious students
> and religious expression. Those who call for selective censorship of
> religious expression are telling religious students, who have earned
> the right to speak at commencement, that they may not speak in an
> authentic voice; they may speak *only* if they remain in the closet,
> only if they deny their authentic perspective and adopt a secular
> perspective on whatever they wish to speak about.
I agree with this as a policy matter. I'm not fully sure I agree that it
ought to be a matter of constitutional right.
I think Jim Henderson's example of a clearly political speech being
offensive is telling. The test is not, is it, whether the speech is
offensive to some group or other. And the test cannot be mere
offensiveness. What separates religious anything (including speech) from
non-religious anything including speech is the special nature of the
religious experience and the special status given it under the
Constitution. The Constitution is why religious speech is different from
non-religious speech - it is the establishment clause that makes it
Should we therefore eliminate the establishment clause? Does anyone on this
list favor that? For the most part it does what it is supposed to do. So
from the big perspective, it has been very successful. We still have
serious arguments, but they are around the relative periphery.
For those who don't like the establishment clause at all, how do you respond
to the dangers presented in the examples of Iran, Israel and now Turkey and
Egypt as the latter two struggle to maintain secular government in the face
of resurgent strains of fundamentalist Muslims? The simple change in the
Egyptian Constitution from Islamic Law being a source to being the source of
law has led many (mostly lower) courts in the country to legitimize the
persecution of Coptic Christians. In Israel an orthodox sect decrees who is
and who is not Jewish - and this has effects on rights in the country.
No. Give me the (non-)establishment clause. Give me overly zealous
separation any day. That way seems to me, in a comparative sense at
least, to maximize free exercise.
Are their wrong decisions? Surely. Are there some which I disagree with in
part because they are too separationist? Absolutely. But it seems that
error is better than the attempt of some to establish this country as Zion,
as literally a Christian Country with Christianity as not only the defacto
established religion, but as the de jure religion as well.
If Reagan's proclamation had any legal effect, I would be very upset. As it
is, I just find it somewhat sad and mildly amusing.
Steven D. Jamar
Professor of Law
Director, Legal Research & Writing Program
Howard University School of Law
2900 Van Ness Street N.W.
Washington, D.C. 20008
President, Legal Writing Institute
vox: 202-806-8017 fax: 202-806-8428
email: sjamar at law.howard.edu
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