Does Brown v. Bd. of Ed. "disfavor a religion"?
mnewsom at LAW.HOWARD.EDU
Wed Oct 2 17:05:34 PDT 2002
It is possible to be both a "strong separationist religionist" and one who "views religion as an integral element of human life and culture." The question is one of the insitutional competence of the common school to teach or inculcate religion. There are other institutions that can teach religion. Thus the value judgment to which David refers is perhaps not quite as absolute as he suggests.
----- Original Message -----
From: David E. Guinn
To: RELIGIONLAW at listserv.ucla.edu
Sent: Wednesday, October 02, 2002 10:33 AM
Subject: Does Brown v. Bd. of Ed. "disfavor a religion"?
In one sense, I think Bobby is correct. There is no such thing as "strict equality" - notwithstanding the court's strong rhetoric to the contrary. Providing a public school enviornment devoid of religion may satisfy the needs of an atheist, an agnostic, or a strong seperationist religionist. It does not meet the needs of a religious parent or a strong humanist who views religion as a integral element of human life and culture and reasonably interprets the absence of religion as reflecting a value judgement (as echoed in the arguments over the content of the educational cannon in higher education). Similarly, a strong bias towards secular reason and the demand that all public acts be justified according to secular standards discriminates against those who believe that an act may only be justified according to their faith commitment and favors those whose "religious" worldview is secular.
On the other hand, it is a false assumption that liberalism is or ever can be absolutely tolerant. As Charles Taylor has long argued, liberalism has limits. It cannot for long tolerate a view that is distructive to its fundamental values. Human sacrafice, honor killings, etc. will not be allowed no matter how they are justified. The key to liberalism is that it seeks to guarantee fundamental rights (a term he admittedly fails to define) and maximize freedoms in a manner consistent with its own survival. Thus, I would suggest that neutrality is a relative term reflecting an effort to not discriminate for or against religion within the normal limits of the liberal polity.
Looked at another way, the liberal state will not allow its laws or instermentalities to be used to intentionally discriminate against a particular religion or to advance the religious beliefs of a religion in any way that would come at the expense of another identified individual or group. However, to facilitate freedom it may allow private action (e.g. the private discrimination in employment) or provide support for a freedom that does not harm another (e.g. the state may fund religious and non-religious charities and institutions of higher learning.)
David E. Guinn, JD, PhD
International Human Rights Law Institute
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