dlaycock at MAIL.LAW.UTEXAS.EDU
Mon Mar 2 20:23:10 PST 1998
>I've probably waited far too long for anyone to be interested in this
>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
>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.
University of Texas Law School
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dlaycock at mail.law.utexas.edu
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