Secular Ritual

[Doug Laycock]

>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


        Yes we have to distinguish, because the theory of the violation is
different and the remedy is different.  Government is entitled to lead, and
thus to endorse but not coerce, on political ritual.  So the remedy in
Barnette was for objectors not to participate in the pledge of allegiance.

        Government is not entitled to lead on religion, and therefore not
entitled to endorse or coerce.  So the remedy in the school prayer cases was
for the school not to lead prayers.  It was not sufficient to let the
objectors not participate.

        I have friends who want to rewrite the school prayer cases in terms
of coercion.  But unless they want the same remedy for school prayer and the
pledge of allegiance, they are applying very different notions of coercion
in the two contexts.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-471-3275 (voice)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu