walen at EARTHLINK.NET
Fri Dec 8 22:59:25 PST 2000
Jim Maule wrote:
>I guess what I am questioning is the reasoning of the courts that gets us
>here. I understand the establishment issue when the public marketplace is
>open only for a limited buffet, e.g., only Roman Catholic displays, or
>only Methodist displays, or only Christian displays, or only monotheistic
>religion displays. Such a display sends a message, it has the effect of
>giving assistance to one or several denominations to the exclusion of
>others. But if ALL religions are permitted displays (subject to time and
>manner regulation) where is the establishment harm? In terms of original
>intent, wasn't the establishment clause a reaction against the limited
>buffet, the showing of a preference to one religion over another? Is the
>concern that preferences to all religions is a preference of religion over
>the religion of non-religion? Isn't the answer to let atheists, agnostics,
>and anyone else have displays also?
Don't we already have what Jim wants? Any group can, subject to TPM
restrictions, get a parade permit to make whatever case it wants to the
public. And if the town council or school or whomever wants to set aside
space for groups to make more permanent displays, again, there is no
problem there, as long as they don't show undue viewpoint discrimination.
The problem here is in determining what the government can do when it
speaks for itself. Do we want to suggest that the government can never
broach a religious theme? Do we want to say that the Constitution
prohibits the use of any religiously tainted iconography? And with regard
to education, do we want to insist that the Constitution cannot allow
cultural exposure to other culture's religious traditions?
The clever and troubling move was introduced by the negative implication
that the government's use of religious symbols in a way that is clearly not
meant as an endorsement is actually an endorsement of the view that the
religion associated with those symbols is false. This is the view that
forces on us the unwanted trilemma of (1) "boringness," (2) unrestricted
government endorsement of religions, or (3) unprincipled line drawing. But
I think the move was too quick.
The real concern, after all, is with the possibility that the government
DOES endorse some particular religion, or that someone would come
reasonably to think that it does because of what it displays. Using a
display which trades on general knowledge that it does NOT endorse some
religion, does not imply that it endorses the REJECTION of that religion.
There is a logical middle space, namely that the government does not
endorse or reject that religion; it merely tolerates it like any other.
Remember, what makes it seem acceptable to have a painting of Hectate in
the first place is the general knowledge that the government does not
endorse Hectate worship. Painting her image on a government building does
not convey new knowledge about what people who run the government endorse;
it trades on old knowledge. Just how troubling can it be to be one of the
rare Hectate worshipers and be confronted with an image which trades on the
well known fact that the government is not in the business of promoting
Hectate worship? Do we have any constitutional reason, or any reason at
all, to protect people from such a confrontation?
The government should take care not cross the line into endorsing the
rejection of a religion. Painting images of Hectate with a mocking
mustache would, for example, cross that line. On the other hand, teaching
the Bible as literature and displaying Tibetan monastic chanting would not
be inherently disrespectful or endorsing. Nor would a simple depiction of
Hectate based on her role in our Western cultural hisory. All such
presentations are consistent with treating the religions in question as
ones which good and reasonable people could or do accept. So perhaps the
establishment clause is not such a mess after all -- at least not on this
University of Baltimore
P.S. Michael McConnell wrote:
>(2) Some African American families in our church in Chicago were very
>upset about the celebration of Kwanzaa at their children's public school.
>The school treated Kwanzaa as cultural and not religious; but these
>families considered Kwanzaa as a quasi-religious alternative to Christmas.
>They objected on the ground that, in effect, the schools were teaching
>black children that Kwanzaa -- and not Christmas -- is the authentic
>holiday for African Americans.
The point seems to shift here. The first three sentences imply that the
problem was that the African American families felt that their
"quasi-religious" alternative was being treated as *merely* cultural. But
I don't see why this has to be the case. One could easily enough teach
that this holiday is celebrated by many people, most of whom are African
American, while Christmas is celebrated by many others, i.e. Christians,
and Saturnalia was celebrated by Romans, etc. No endorsement or rejection
need be implied by such cultural coverage.
The last sentence indicates that the problem is that the schools were
teaching black children that they had to move over and celebrate Kwanzaa
and not Christmas. If so, that was just stupidity on the part of the
schools. As I just said, the point should have been that most of those who
celebrate Kwanzaa are black, not that most of those who are black celebrate
(or should celebrate) Kwanzaa.
More information about the Religionlaw