Speaking of endorsements
VOLOKH at law.ucla.edu
Tue Oct 18 11:10:29 PDT 2005
I should think that the former is unconstitutional under
Scalia's approach, but the later would be permissible.
> Eugene's comment reminded me of a question I had been meaning
> to ask after the Ten Commandments cases last term, but never
> got around to.
> Under Scalia's and Rehnquist's approach to religious messages
> cases, would it be unconstitutional for the U.S. to make the
> following proclamation and enact the following policy "The
> United States of America endorses Christianity as the one
> true faith. Accordingly, the government will only display
> religious messages on public property on its own behalf
> consistent with Christian beliefs."
> Or, alternatively "The United States of America endorses the
> belief that there is one God. Accordingly, the government
> will only display religious messages on public property on
> its own behalf consistent with monotheistic beliefs."
> Alan Brownstein
> UC Davis
> Eugene wrote:
> Yet it seems to me that the interpretation of the site
> as endorsing a certain view on religious matters remains a
> quite plausible interpretation; and a court applying
> endorsement doctrine evenhandedly may well take the view that
> a reasonable person would adopt this interpretation, which
> would make the site unconstitutional. I'm not at all sure
> that this is a good result, and perhaps this is further
> evidence of the difficulty that an endorsement test creates
> in a world where much speech (especially in education) is
> undertaken by government agents, and many debates are hard to
> engage in without the ability to say often controversial
> things about religious doctrine. Nonetheless it strikes me
> as an eminently legally plausible result.
> Finally, this all reminds me of one of my favorite
> quotes on religion-and-the-law question, from Michael W.
> McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L.
> Rev. 115, 150 (1992):
> "Consider the following examples: (1) How would the
> parochial school aid cases fare under the endorsement test?
> ... A significant segment of the population believes that the
> use of government funds to assist religious education is
> tantamount to putting priests on the payroll. On the other
> hand, granting funds to secular schools but not to equally
> qualified religious schools creates at least the appearance
> of disapproval.... (2) Does tax-exempt status convey a
> message of endorsement of churches? The government grants tax
> exemptions on the theory that exempt organizations provide
> benefits to the public. Including churches on this list
> implies that they are wholesome and beneficial
> institutions.... But what message would be conveyed by
> excluding churches from the class of tax-exempt charities? ...
> "Does exemption of religious organizations or of
> religiously motivated individuals from a law of general
> applicability 'endorse' religion? Opponents of religious
> accommodations argue that '[s]pecial treatment for religion
> connotes sponsorship and endorsement'.... Justice O'Connor
> agrees that exemptions cause resentment, but holds that this
> resentment is 'entitled to little weight' because
> accommodations promote the 'values' of the Free Exercise
> Clause. Others, such as Professor Laycock, say that
> exemptions do not appear to endorse religion at all.
> "I know all of these people to be reasonable observers,
> well schooled in the values underlying the First Amendment.
> That does not seem to help."
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