nebraskalawprof at yahoo.com
Tue Mar 7 07:55:01 PST 2006
Mark: I am pretty closely connected to most of the religious liberty public interest lawyers and litigation, and I don't know what to think of your list. It doesn't sound like what I hear my friends talking about.
First, I think right now the primary litigation goal of Christian conservatives is the defense of traditional marriage, to uphold the idea that marriage is a relationship between one man and one woman, and that no substitutes for marriage should be recognized. In other words, they wish to defend the line between tolerance and celebration of alternative lifestyles.
Second, I think the idea of school choice is becoming more and more important to Christian conservatives. Cases like the Colorado Christian University case, in which college scholarships can be used to attend non-pervasively sectarian, but not pervasively sectarian colleges, must be won, and Locke v. Davey needs to be reversed in time. Long term it would be wonderful to see the Court hold that religious neutrality requires states to offer school choice to parents to enable them to protect their children from being held as part of a captive audience for governmental inculcation.
Third, free exercise must be protected under the First Amendment (Smith is a great threat to religious liberty and must be reversed or its exceptions must be given full force).
Fourth, I think I would describe the I.D. issue as one involving greater local control over school boards. Curriculum decisions should be made in the local political process, not by a body of unelected lawyers sitting in judgment concerning people's "purposes." Of course, if we get school choice, all this matters a lot less.
Fifth, Christian conservatives continue to be the leading defenders of free speech today, whether it be in Sweden in the Ake Green case,in public schools defending equal access, in Locke v. Davey challenging viewpoint discrimination in scholarships, in law schools defending the right of the CLS to meet on campus, or in front of abortion clinics defending speech in traditional public fora.
I don't think anyone really wants a "Christian Nation" decision. I think my friends simply want religious speech--not just Christian speech but religious speech more generally--to be respected in the public square. In other words, public schools and local governments should be as free to recognize religious holidays and symbols as they are to celebrate Earth Day, MLK Day, or Gay Pride Month.
Indeed, a coercion test (as opposed to an endorsement test) under the EC would probably satisfy most Christian conservatives. If no one's liberty is substantially burdened by a Ten Commandments display or a Nativity Scene in a public park or school, there is no reason for courts to intervene under the EC. All dissenters need do is avert the eye. Just as the Christian must avert the eye if he is offended by a Gay Pride display, the secularist can avert the eye if he is bothered by a Ten Commandments display.
Indeed, Justice Thomas' idea that the EC is incorporated only to the extent that it protects a liberty interest would be just about right. Only when someone's liberty interest under the EC is substantially burdened should federal courts intervene aginst state and local government under the incorporated EC.
I hope this helps a little. I would be happy to discuss these matters with you.
Mark Tushnet <tushnet at law.georgetown.edu> wrote:
I'm writing something in which I try to describe (in as neutral a way as I can) the litigation goals likely to be sought in the foreseeable (mid-range) future by (and here it's hard to offer a neutral characterization, but) what I describe as the politically mobilized Christian evangelical movement. Here's my list. Additions and amendments (not all of which I'll accept, of course) welcome:
Few of the issues of interest to the politically mobilized Christian evangelical movement are off the wall,<!--[endif]--> and a fair number are close to acceptance already. (1) Obviously, the overruling of Roe v. Wade, but not . . . the adoption of a constitutional requirement that abortion be lawful only under quite restricted conditions. (2) Acknowledgment by government of the (essential) role of Christianity in the creation of the United States, and in embedding basic values in American political culture. (3) Extension of public support for faith-based institutions, including religiously affiliated schools, whether through vouchers or direct grants. (4) Protection from the application of anti-discrimination laws to those whose decisions, otherwise covered by such laws, rest on religious grounds. (5) A cluster of issues related to the teaching of the Darwinian theory of evolution in public schools: (a) Establishing the proposition that it is constitutional!
permissible to characterize that theory as a mere theory; (b) allowing public schools to teach alternatives to Darwinian theory even though those alternatives can be characterized as religious; (c) requiring public schools to reach such alternatives. (6) Again, a cluster of issues aimed at eliminating some regulations imposed on religiously affiliated schools. <!--[if !supportFootnotes]-->
<!--[endif]--> <!--[if !supportFootnotes]--><!--[endif]--> The only one I can think of is the possibility that governments could issue declarations that the United States is a Christian nation, and it is not clear to me that there is any real (as distinct from rhetorical) interest in the movement in seeing that legislatures adopt such declarations.
-- Mark Tushnet Georgetown University Law Center 600 New Jersey Ave. NW Washington, DC 20001 202-662-9106 (voice) 202-662-9497 (fax)
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