Secular purpose

[Prof. Steven D. Jamar, Dir. LRW Program]

I want to thank Andrew Koppelman for a very thoughtful post which helps me
sort out my thinking on this difficult topic.

But, I think I am a little less sanguine about the simplicity and clarity of
his test when applied to many things which I would deem acceptable.

For example, I think the President's references to god are ok - but they seem
to be establishment (though not legislation) of the type Prof. Koppelman's
test would outlaw.  Or perhaps the proposed interpretation relates only to
duly enacted laws?  Not executive or individual statements and practices?
Well, that can't be, can it, because the President can proclaim not just as
Reagan did that this is a Christian nation, but instead proclaim that
Christianity is the state religion - and that is not a duly enacted piece of
legislation, is it.

It would seem that closing schools for Christmas and Easter (long weekend) and
lighting the Christmas tree would all pretty much equal the "must fast during
the month of Ramadan" example.  How are they distinguishable?

Could the government pass a law that requires fasting on day each month (third
Wednesday would be my suggestion  :-)    ) on the grounds that it promotes a
secular purpose of creating a healthier citizens?  Or must fast on election
day, or the day before?  Or ban alcohol for two days before and including the
day of elections?  So, if the government can do these things, is it tying the
fast to the Muslim holy month which makes it improper - in which case it seems
we are back to motivation - not outcomes.

I assume I am missing something in this analysis.

Cheers,
Steve

--
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