Secular purpose

[Mark S. Scarberry]

I've probably waited far too long for anyone to be interested in this point, but
doesn't Barnette in effect hold that enforced secular ritual is also
impermissible?  Do we have to be able to determine whether ritual is secular or
religious to decide whether the 1st Am prohibits forcing people to engage in it?

Mark Scarberry, Pepperdine Law
mscarber at pepperdine.edu


> >From: Andrew Koppelman
> >To: RELIGIONLAW
> >Subject: Secular purpose
> >Date: Friday, February 20, 1998 4:27PM
> >
> >I don't mean to be endorsing Kathleen Sullivan's argument, the weaknesses
> >of which were amply examined by Michael McConnell's companion piece, which
> >I cited in an earlier posting.  Indeed, I relied on McConnell's qualified
> >endorsement of the secular purpose requirement precisely in order to show
> >that one could support that requirement without embracing secularism.
> >
> >When I made my claim about first amendment theory needing a distinction
> >between the religious and the secular, I had in mind precisely the
> >consideration just cited by Doug Laycock:  "compulsory religious ritual or
> >observance is
> >clearly at the core of the Establishment Clause.  Moral rules have for
> >centuries been the concern of both governments and religions."  Bob Destro
> >seems (I have probably misunderstood him) to be suggesting that we
> >shouldn't make any distinction between religion and other normative
> >perspectives.  But if we don't do that, how can we say (as I presume we'd
> >like to say) that compulsory religious ritual is prohibited?  [snip]