Unconstitutional for a government official to express his rel igio us views?

[Gey, Steve]

The answer to the free speech dilemma posed by a legislator who belongs to
an absolutist, fundamentalist church is that my theory would not limit that
legislator's right to belong to his chosen church, nor would the theory
limit his ability to express his religious views publicly.  My theory would,
however, prohibit the legislator from voting for or against legislation
based on his religious views, and the legislator's statements about religion
and specific public policies could be used as evidence that a particular
piece of legislation is unconstitutional because it is based on an
impermissible sectarian purpose.  (This assumes that the legislator in
question was an important part of the process that led to the adoption of
the legislation.  I would not require courts to invalidate legislation based
solely on the isolated religious views of one or two insignificant
legislators where there is evidence that secular purposes predominated in
the process leading up to the adoption of the legislation.)  I disagree with
Eugene's conclusion that my proposed limitations on the government's ability
to carry out the legislative actions of a process dominated by an
aggressively devout religious legislative majority constitutes an effort to
use the Establishment Clause to trump the Free Speech, Free Exercise, or
Religious Test Clauses.  In my view these clauses protect the private
expression and beliefs of individuals, not the public actions of government.
Thus, when private individuals become part of the government they become
subject to the constitutional limitations placed on the institution to which
they belong.

The natural response to this argument is:  "Well, of course your theory
limits the religious speech of private individuals because you are
prohibiting that speech from having any effect on government policy.  Thus,
individual religious speech is protected only to the extent that it is
ineffectual."  But if this criticism were valid with regard to the
Establishment Clause limits I propose, then it would also cast doubt upon
existing law in a variety of other constitutional contexts.  A political
candidate has the constitutional right to express publicly the most racist
ideas imaginable, for example, but if elected to public office that
candidate may not join together with like-minded fellow legislators and
incorporate those ideas into legislation that would violate the Equal
Protection Clause.  And if a racist legislator were instrumental in
drafting, enacting, and implementing discriminatory legislation, it is
almost certain that in a lawsuit challenging that legislation the
legislator's racist statements would figure prominently in a court's
assessment of whether the legislation was "intentionally" discriminatory
under Washington v. Davis.  In a somewhat different context, the Free Speech
Clause protects a public employee who belongs to an organization advocating
violent revolution, but it does not protect that employee if the employee
tries to use his public office to implement those views.  In a third
context, an individual obviously has a constitutional right to express moral
opposition to the application of the death penalty in all circumstances, but
under Witherspoon v. Illinois the government may exclude that individual for
cause from serving on a jury in a death penalty case unless the individual
agrees to follow the law permitting capital punishment.  In effect, a
potential juror who does not temporarily renounce his views on the death
penalty is forced to give up the right to participate in the process of
judging capital murder cases.

Even in the religion context my theory does not go beyond where the Court
has already gone.  In Wallace v. Jaffree the Court struck down the Alabama
silent prayer statute based largely on the statements of one legislator that
he supported the (facially neutral) legislation in order to return prayer to
the public school classroom.  In Edwards v. Aguillard the Court went even
farther and ruled that it did not believe the Louisiana legislature's
disavowal of religious motivation for the "equal time" creationism statute.
Thus the Court closely scrutinized the Louisiana legislators' carefully
secularized statements for evidence of religious bias.  Outside the
governmental context there is no legitimate cause for such scrutiny of a
private person's expression on religion or any other subject; but the rules
with regard to speech by government actors are different.  Once an
individual becomes part of the government (and the government is nothing but
a collection of individuals doing public business), then many actions that
would be permitted by private persons suddenly become off-limits.  Given
Eugene's acknowledgement that religious endorsement by "a person acting in
an official capacity" would violate the Establishment Clause, I suppose our
real point of contention is over when a person begins acting "in an official
capacity."  My own view is that private statements that reflect directly on
a public official's motivation for certain policy choices fall on the
Establishment Clause side of the line.  There will inevitably be close cases
in making this assessment, but as a matter of general principle I continue
to believe that both the separation principle and the secular purpose
requirement are crucial parts of any serious Establishment Clause
jurisprudence, which must be defended vigorously against attempts by hostile
public officials to use the constitutional rights of private individuals to
defend unconstitutional public action.


-----Original Message-----
From: Volokh, Eugene
To: RELIGIONLAW at listserv.ucla.edu
Sent: 6/25/00 6:20 PM
Subject: Unconstitutional for a government official to express his religio
us views?

        I much appreciate Steve's detailed summary of his very
interesting arguments.  Let me ask a question on just one part of his
point:  That "If [a government] employee is in a policymaking role, the
Establishment Clause interest in avoiding governmental endorsement of
religion would seem to require limits on the public expression of
religious faith that link the official's policy decisions to a
distinctly religious purpose -- even if that public expression takes
place outside the precincts of government and is carefully characterized
as the policymaker's 'private' views."

        Let me just make sure that I understand this correctly:  Let's
say that an elected official -- say, a Representative -- belongs to a
church whose stated creed is that all one's actions must be subordinated
to the need to follow God's law and further God's purposes, and that all
one's decisions must be made with an eye towards this goal.  A reporter
asks the Representative "Given that you belong to this church, is it
true that your votes on various laws are motivated by the desire to
further what you see as God's commands?"  The official says "Sure.  My
colleague X's votes are motivated by the desire to further his view of
the good, which is drawn from secular sources.  My votes are motivated
by the desire to further my view of the good, which is based on what I
see as God's command."  Does this Representative's speech violate the
Establishment Clause?  Would his belonging to a church that is known for
having the approach that I describe violate the Establishment Clause,
even if he'd answered the reporter's question with "No comment"?

        If so, can this possibly be right?  Why should the Establishment
Clause, which on its face hardly seems to restrict this sort of speech,
be interpreted as trumping rights under the Free Speech Clause, the Free
Exercise Clause, and probably the Religious Test Clause, especially when
there's a simple interpretation of the First Amendment that would avoid
such an internal constitutional conflict -- the interpretation that it
is only endorsement by a government body, or a person acting in an
official capacity, that involves "Congress . . . establish[ing]
religion," or a "State" (14th Am) doing the same?