Steven D. Jamar
sjamar at LAW.HOWARD.EDU
Fri Dec 8 13:22:55 PST 2000
Though I think Rick's point is well expressed, and I find I
agree with most of it, I also think we ought not so impoverish
our public places as to not include cultural icons from our
many roots. For this reason the "if dead religion, ok" line of
reasoning is more insidious than the simple display of many
mythic creatures - whether believed in today or not. To many
people all of the religious gods are mythic - and a great many
of the stories are as well - even while recognizing the
historical existence of many of the actors around whom the
myths have been built.
This whole thing of tolerance and acceptance and endorsement
gets messier the closer one looks at it.
It is in part for this reason that I think we need to allow for
a great deal more room for such things than it seems many are
willing to allow.
I see nothing wrong here. This level of endorsement or
anti-endorsement is less problematic than US currency
iconography and text and than the pledge of allegiance "under
And the constant call upon deities by politicians and so on.
How does one incorporate the concept of "chill out" into the
area of religious liberty?
Rick Duncan wrote:
> Alan raises some very interesting issues about the EC
> and "dead" religions (i.e. religions without modern
> adherents). I think he is right that it is unlikely
> that a community would be endorsing *favorably* a god
> that has few or no modern adherents.
> But in depicting the "god" as a myth--as dead or
> untrue-- isn't the community endorsing a particular
> religious view about that "god's" lack of deity. For
> example, could ,say, a predominantly Christian
> community paint a mural of a Hindu deity and label it
> a "mythical" figure? Of course, there are many Hindu
> believers in the world, but perhaps none in this
> particular community. Isn't this community endorsing a
> message of disbelief in a particular "god?"
> There may be no modern believers in Hecate, but can we
> know this for sure? If there is a single modern
> believer, isn't the community's decision to label her
> god a myth a serious endorsement of disbelief under
> the EC? Indeed, the smaller the minority the more
> serious the endorsement of disbelief in the gods of
> the minority.
> I think it is very problematic to say that the gods of
> a small minority religion are fair game to be
> officially marginalized as nonexistent or as mere
> Indeed, I think there is a similar kind of EC problem
> when a community secularizes a religious figure or
> concept. For example, a community that endorses a
> secularized vision of" XMAS" (Ho!Ho!Ho! Merry XMAS--Be
> sure to spend lots of money at local merchants) has,
> in my view, improperly approriated and altered a
> sacred event. The community is endorsing a message
> that Christmas is not about the birth of Jesus and the
> gift of salvation, but instead is about presents and
> shopping. In my view, this is as much an EC violation
> as is a nativity scene in the public square.
> --Rick Duncan
> --- "A.E. Brownstein" wrote:
> > At first glance, this issue appears to raise
> > an interesting anomaly
> > between the free exercise clause and the
> > establishment clause. Clearly,
> > there has to be a believer of a religion whose
> > religious practices are
> > being substantially burdened for there to be a free
> > exercise violation. But
> > people who claim Establishment Clause violations
> > typically do not belong to
> > the faith that is allegedly being promoted or
> > endorsed by government.
> > Indeed, people who reject all religious beliefs can
> > allege an Establishment
> > Clause violation.
> > But I think the existence of believers, as
> > Michael McConnell suggests, is
> > clearly relevant to whether there is an
> > Establishment Clause violation,
> > even if it isn't dispositive of the question. I
> > think this is true for most
> > interpretations of the Establishment Clause.
> > If no one, including the people who serve as
> > lawmakers and officials in
> > government, believes in the religion allegedly being
> > promoted, it is
> > difficult to contend that the state intended to
> > promote or endorse that
> > faith through the challenged artwork. Thus, to the
> > extent that government
> > purpose is relevant to an Establishment Clause
> > inquiry, the lack of
> > existence of believers seems relevant. Indeed, for
> > the few political
> > process model advocates left today, it might be
> > argued that the fact that a
> > religion has very few adherents in a community is
> > also relevant. The
> > government of a community that is overwhelmingly
> > Christian is unlikely to
> > commission a picture of Hecate for the purpose of
> > promoting or endorsing
> > some ancient faith.
> > The lack of adherents is also relevant in
> > evaluating the effects of
> > government action. If you believe, as I do, that the
> > endorsement test
> > primarily reflects equality values similar to those
> > protected by equal
> > protection doctrine, the focus of the analysis
> > should be on whether the
> > government's action favors "insider" faiths and
> > communicates a message of
> > subordinate status to "outsider" religions. But this
> > analysis clearly
> > presumes that faith communities exist that the
> > government is in some sense
> > ranking in a religious hierarchy. It's hard to argue
> > that the government is
> > identifying a non-existent faith community as having
> > favored "insider"
> > status. As Michael asks, how could anyone reasonably
> > perceive the
> > government to be endorsing a religion in such a
> > case?
> > Alan Brownstein
> > UC Davis
> Rick Duncan (conlawprof at yahoo.com)
> Do You Yahoo!?
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Prof. Steven D. Jamar, Director LRW Program vox:
Howard University School of Law fax:
2900 Van Ness Street NW
mailto:sjamar at law.howard.edu
Washington, DC 20008
"Nothing worth doing is completed in our lifetime; therefore,
we are saved by hope. Nothing true or beautiful or good makes
complete sense in any immediate context of history; therefore,
we are saved by faith. Nothing we do, however virtuous, can be
accomplished alone; therefore, we are saved by love."
Reinhold Niebuhr, The Irony in American History (Scribners
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