GovernmentdisplaysprotestingagainsttheSupremeCourt's EstablishmentClausejurisprudence

Newsom Michael mnewsom at law.howard.edu
Fri Jul 15 12:03:52 PDT 2005 

It all depends on how one characterizes the interests at stake here.  If
the primary motivation is religious, then, if the Religion Clauses are
to have any bite, then the law of those clauses ought to apply.  And
this is the desirable result because in striking a balance between the
interest in permitting governmental units to criticize the decisions of
other governmental units and the interest in the non-establishment
principle, the second trumps the first precisely because the first
involves governmental speech, speech that is not entitled to the same
protection as is private speech.  Wouldn't you agree? 

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu] 
Sent: Tuesday, July 12, 2005 3:34 PM
To: Law & Religion issues for Law Academics
Subject: RE: GovernmentdisplaysprotestingagainsttheSupremeCourt's
EstablishmentClausejurisprudence

	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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