What causes more religious strife: Government bodies posting the
Ten Commandments, or courts ordering their removal?
VOLOKH at law.ucla.edu
Thu Aug 4 09:49:58 PDT 2005
If religious strife is the touchstone, then I wonder: What
causes more religious strife: Government bodies posting the Ten
Commandments, or courts ordering their removal?
Sure, you can say that even the latter strife is "caused" by the
initial posting -- but this just further illustrates how vague a term
causation can be. (In a sense, even outright religious persecution, in
the sense of discrimination or even physical attacks based on a target's
religion, is caused both by the persecuter and the victim; but for the
victim's holding his religious views, he wouldn't even be attacked.)
So if one focuses on immediate cause, then it seems to me that
the endorsement test might produce more religious strife than it
removes. If one focuses on but-for cause, then religious dissent causes
religious strife in the same sense as suppression of the dissent does.
And if one tries to find an in-between position, I suspect one
will quickly recognize that the "causation" stops being an empirical
judgment, and becomes a value judgment: One would be counting what one
sees as *improper* causation of religious strife (e.g., government
posting of the Ten Commandments empirically causes religious strife, and
we count that because the government has no right to do that), but
excluding what one sees as *proper* causation of religious strife (e.g.,
a federal court's order removing the Ten Commandments empirically causes
religious strife, but we don't count that because the court is only
doing its duty). So lurking behind this supposedly neutral, factual
judgment is the very normative question that the "religious strife" was
seeking to answer.
It follows, it seems to me, that the religious strife inquiry is
misguided (as well as involving empirically difficult and hotly
contested predictions, a separate matter from the one I identified
above). If we think that posting the Ten Commandments is
unconstitutional, then removing the Ten Commandments is obligatory
regardless of whatever religious strife observers guess that it might
cause, and regardless of how little religious strife the original
posting might have caused. If we think that the posting is
constitutional, then it's permissible regardless of whatever religious
strife people conjecture it might cause.
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