Government displaysprotestingagainsttheSupremeCourt's Establishment Clausejurisprudence

[Newsom Michael]

Mark, the problem, as I see it, is that the non-establishment principle
in and of itself has a religious motivation.  (See, e.g., my Protestant
Empire thesis regarding the Tentative Principle.)  Furthermore, that
religious motivation has, at least, been challenged, and perhaps has
been recast or restated over time.  Or, even more likely, has rendered
much more ambiguous as the religious composition of the country has
become less Protestant over time. (See, e.g., my Protestant Empire
thesis regarding the Revised Tentative Principle -- a/k/a
Incorporation.)

Protestants, and perhaps others, have had a rather serious falling out
on precisely this point.  The motivation remains religious, but, in
classic American style, also remains pragmatic.  Therein lies the crux
of the problem.  People disagree as to the propriety of any particular
"practical" understanding of the religious motivation behind the
non-establishment principle.  Non-protestants are not of one mind on the
question either.

I strongly suspect that the real argument is not about religious
motivation, as such, but is about HOW religious motivations express
themselves and work themselves out in our social, cultural, political
and economic life.  And this is where the "purpose" prong of the Lemon
test comes into play.  Whether one uses "but for" or some other language
is less important to me than a careful consideration of the practical
implications of the stakes or interests in any given case.  

No grand theory emerges, perhaps, but a clearer appreciation of the fact
that there are "good" religious motivations and there are "bad"
religious motivations, a conclusion that many strive mightily to avoid.
And, getting to the heart of the culture wars, many, including me,
believe that the pushier the motivation is, the worse it is, at least in
terms of the non-establishment principle.



-----Original Message-----
From: Scarberry, Mark [mailto:Mark.Scarberry at pepperdine.edu] 
Sent: Tuesday, July 12, 2005 3:55 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Government displaysprotestingagainsttheSupremeCourt's
Establishment Clausejurisprudence

Let me understand. If government action would not have been taken "but
for"
the religious purpose of those who take the action, then, according to
Marty, the action violates the Establishment Clause under the first
prong of
the Lemon test. Such a "but for" test as a general matter in
Establishment
Clause cases would eliminate much of the social welfare and
antidiscrimination legislation that has been enacted, probably along
with
the (somewhat) progressive income tax scheme. 

Abolition of slavery would never have occurred without a religious
motivation for it. That's not to say that religion didn't also play a
role
on the pro-slavery side, and of course the Establishment Clause can't
invalidate a later Constitutional amendment, but an interpretation of
the
Establishment Clause as setting up a test that would be violated by the
post-Civil War Amendments (including the 14th under which the Est.
Clause
has been incorporated against the states!) does not seem plausible to
me. 

Perhaps Marty means to limit such an approach to cases in which a
government
actor posts or uses explicitly religious language. 

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: marty.lederman at comcast.net [mailto:marty.lederman at comcast.net] 
Sent: Tuesday, July 12, 2005 12:41 PM
To: Law & Religion issues for Law Academics; Law & Religion issues for
Law
Academics
Cc: Volokh, Eugene
Subject: RE: Government displaysprotestingagainsttheSupremeCourt's
Establishment Clausejurisprudence

Forget "primary" and "secondary."  What the Court appears to be getting
at
in Epperson/Edwards/Wallace/McCreary County -- the so-called "purpose
prong"
decisions -- is whether an objective to advance religion is a *but for*
cause of the state action.  (Yes, I know that there are problems with a
"but
for" causation test, too -- but I think it's about as close as we're
going
to get to describing what the doctrinal rule is and should be in the
mine
run of cases.)  

And, as many of us have written in this thread, the answer to *that*
question in your hypothetical would be "of course it is." 


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