Government
displaysprotestingagainsttheSupremeCourt's Establishment
Clausejurisprudence
Volokh, Eugene
VOLOKH at law.ucla.edu
Tue Jul 12 12:33:52 PDT 2005
Well, I take it that the reason may be both resentment at what
many people see as the Supreme Court's improper overriding of popular
will, and a desire to endorse religion. How can courts decide in a
principled way which is "primary" and which is "secondary"?
But even if this is found to be a primary religious purpose, it
seems to me a mistake for federal courts to interpret the First
Amendment as barring criticism of those courts by state and local
entities. Whether the criticism of a federal body is religiously
motivated or not, it ought to be constitutionally protected against
federal suppression.
Eugene
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Newsom Michael
> Sent: Tuesday, July 12, 2005 10:47 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Government
> displaysprotestingagainsttheSupremeCourt's Establishment
> Clausejurisprudence
>
>
> WHY criticize McCreary? WHY do any of these "intertwined"
> things? The primacy of the religious purpose is clear in all
> of them. Nobody is going to do any of these things except
> for, primarily, a religious reason or purpose.
>
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
> Sent: Friday, July 08, 2005 4:15 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Government displays protestingagainsttheSupremeCourt's
> Establishment Clause jurisprudence
>
> Well, that's the complicated thing here. The
> disagreement is meant to (1) criticize the Supreme Court, (2)
> possibly get the constitutional law changed, by pushing a
> constitutional amendment, by getting Justices with different
> views appointed, or by getting the current Justices to change
> their minds, (3) persuade the public that endorsing religion
> is permissible, and (4) endorse reliance on God's word in
> government action as morally and theologically important,
> valuable, and correct. These items, though, are closely
> intertwined -- a big part for the argument for #1, 2, and 3
> is either that #4 is correct or at least that lots of
> important and respected American leaders and government
> bodies have accepted #4 as correct. How do we tell what's
> the "primary" purpose here, which McCreary calls on us to do?
> And how can the courts block such messages without
> interfering with local government's abilities to participate
> in the debate about #1, 2, and 3, which (especially the
> debate about #2) is an important part of national self-government?
>
> Eugene
>
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> > Newsom Michael
> > Sent: Friday, July 08, 2005 12:46 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Government displays protesting
> > againsttheSupremeCourt's Establishment Clause jurisprudence
> >
> >
> > If the disagreement is meant to further a religious agenda,
> > then of course the display is unconstitutional. I can't
> > conceive of how the "primary purpose" as you put it, could be
> > anything else.
> >
> > ----Original Message-----
> > From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
> > Sent: Thursday, July 07, 2005 6:47 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Government displays protesting against
> > theSupremeCourt's Establishment Clause jurisprudence
> >
> > Even setting aside the rather overwrought charge of
> > treason, is this even civil disobedience? It would only be
> > that if the Court were to conclude that such a display is
> > unconstitutional. And therein lies the question: When the
> > government's primary purpose is to convey its disagreement
> > with the Court's decision (albeit on the subject of religious
> > speech), and when the display both conveys this disagreement
> > and conveys the government's view that endorsement of
> > religion is proper, should that be treated as unconstitutional?
> >
> > Eugene
> >
> > > -----Original Message-----
> > > From: religionlaw-bounces at lists.ucla.edu
> > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Brad Pardee
> > > Sent: Thursday, July 07, 2005 3:45 PM
> > > To: Law & Religion issues for Law Academics
> > > Subject: Re: Government displays protesting against the
> > > SupremeCourt's Establishment Clause jurisprudence
> > >
> > >
> > > ----- Original Message -----
> > > From: "Steve Klemetti" <sklemetti at softhome.net>
> > > > I don't think it would be because it sounds treasonous or
> > something
> > > > like
> > > > that. When one
> > > > governing body goes against the orders of a higher court,
> > > then that first
> > > > body is violating
> > > > the constitution by that action. If the people or these
> > > government bodies
> > > > want to add religious
> > > > symbols, they can amend the constitution to allow it,
> not defy the
> > > > interpretation of it by the body that the constitution
> designates.
> > >
> > > Under the criteria you are setting forth, any government that
> > > assisted escaping slaves post-Dred Scott was guilty of treason or
> > > something like it.
> > > After all, to paraphrase what you have said, "If the people
> > or these
> > > government bodies want to aid escaping slaves, they can amend the
> > > constitution to allow it, not the defy the interpretation of
> > > it by the body
> > > that the constitution designates." It might well be illegal,
> > > and they might
> > > engage in it as an act of civil disobedience (which has a
> > > long history) but
> > > it can hardly qualify as anything akin to treason.
> > >
> > > Brad Pardee
> > >
> > > _______________________________________________
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