volokh at MAIL.LAW.UCLA.EDU
Sun Oct 31 12:07:41 PST 1999
Forgive me, but doesn't this very point cast serious doubt on the inquiry? Even I, a generally quite secular person, would very much disagree as to the anti-Darwinism statute in Epperson and the Sunday closing laws.
Both have eminently plausible secular justifications: The Epperson statute removes a highly contentious and politicizing topics from the government-run schools, thus preventing the alienation of a significant segment of a diverse society from those schools. Though the alienation would happen because of some people's religious beliefs, the attempt to avoid this alienation is simply not the same as an intention to advance a certain religious belief. To give an analogy, imagine a completely nonreligious businessperson running a system of for-profit K-12 schools in a particular state where many people deeply disapprove of evolution. Isn't it plausible that he would seriously consider barring all schools in the system from teaching evolution, simply to keep more consumers happy with the schools, and to prevent flight to alternative school systems or at least a lessened commitment to his product? Seems eminently plausible to me, and though government-run schools are driven not by profit but by other considerations, the need to prevent the alienation of potential clients remains. I have no idea whether 51%+ of the legislators actually had this justification in mind or not (though I'd caution against understating the prevalence of this approach -- legislators are *very* knowledgeable about how to do things aimed at avoiding controversy and keeping people happy); but in any event, it's entirely plausible.
As to Sunday closing laws, of course it makes sense for some people who want a day off to organize a cartel that requires everone else to have the same day off, thus preventing their competitors from stealing a march on them. And if most people in the community already, for their own personal reasons, which are sometimes related to going to church and sometimes aren't, prefer Sundays off, and there'd in any event be fewer customers on Sundays, of course it makes sense to make Sunday be such a day. Now maybe this conveys to some a message of endorsement, and maybe it's unfair to some people who already feel obligated to take Saturdays off. But if the claim is that the only plausible purpose of the law is to advance a religion, that claims seems to me just mistaken.
Given such disagreement even among secular people on this question, would a test that confessedly requires judges to estimate "cultural meaning" -- doubtless from the perspective of their own subcultures -- really be administrable?
In any event, though, I'd be delighted to see a copy of the article; if you could e-mail it to me in Word format off-list (since I'm out of snail-mail touch), I'd be very much obliged. (I would normally send this request off-list, but since I'm posting this in any case, I thought I'd include the request.)
Andy Koppelman writes:
It seems to me that, here as in other places where cultural meaning
matters, the judges just have to decide whether the secular justifications
are, all things considered, plausible. Laws that flunk the secular purpose
requirement, on my reading, include the anti-Darwinism statute in Epperson,
the Ten Commandments posting in Stone v. Graham, and the Sunday closing
laws. Wallace v. Jaffree seems to me wrongly decided, and Edwards v.
Aguillard is a hard case, in which the Court ought to have allowed evidence
to be taken on the secular plausibility of the statute, rather than
allowing the matter to be disposed of by a motion for summary judgment
before trial. Nativity displays are problematic only because the de facto
establishment seems to constitute an exception to the establishment clause
for longstanding public rituals,and the scope of this exception is uncertain.
This list of conclusions summarizes fifteen pages of argument in the paper,
and I realize that it's unsatisfactory, but maybe it will induce some to
read the paper.
> Also, a secondary question: When you say that "generalized support
>for religion in general" is permissible, do you mean that any preference for
>one belief system -- e.g., conscientious objector exemption from the draft
>-- must be made available to all belief systems equally, or that the
>preferences must take the form of a generalized exemption system a la Smith
>or a la an exemption-less, specific-revision-less RFRA?
As for the exemption question, I try in the paper to say nothing about what
sort of exemptions are permissible or whether the judiciary ought to be in
the business of carving them out. I only want to address the logically
prior question of whether it is ever permissible to give a special benefit
to religion as such. If the answer to that one is no, then it seems to me
that the argument is over before it starts, because no exemptions of any
sort are permissible.
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL 60611-3069
akoppelman at nwu.edu
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