A Hypo I Am Using in Class

[Rick Duncan]

"Brownstein, Alan" <aebrownstein at ucdavis.edu> wrote:
   
  Thus, I might certainly be offended by state expression that endorses moral or political positions that I reject  (such as expression that endorses  welfare policies that provide inadequate health care to the children of indigent families) – but I view that issue as one that is distinct from state expression that endorses the belief that Jesus Christ is the Son of G-d and condemns those who believe otherwise.
   
  I think the real difference between Alan's and my views on the issue of a passive nativity scene is that I simply can't understand how anyone can see a nativity display at Christmas as anything other than a recognition that some in the community are celebrating a holiday that has great meaning to them. No one is condemning "those who believe otherwise" nor is there any reason to see a passive nativity display as endorsing any particular statement about Christ except that a religious subgroup in the community is having a special day on  December 25 (His designated birthday). 
   
  And since, under the Ct's own theory of incorporation, the EC applies to the states only as a fundamental individual liberty, then surely Justice Thomas is correct that a real coercion test--one that requires a truly substantial burden on liberty--is the one test that fits with the view that the EC applies against the states only to the extent that it protects individual liberty against coercive burdens or deprivations. No one's liberty is burdened by a passive Christmas display; indeed, when the EC is used to enjoin such a display, the EC becomes an "anti-liberty" heckler's veto used to deprive a willing audience of the liberty to view a display they wish to view (thereby sending a message of real condemnation to those whose liberty is taken to satisfy the demands of those who don't like the display in a public square that includes so many other displays, including some--such as the gay pride--stop homophobia display--that are very provocative and hurtful to some).
   
  The move from O'Connor to Alito may well spell the end of the endorsement test and the censorship power that it delegates to those who dislike including religious displays as part of a public culture that includes everyone else. I certainly hope so, not because I wish to condemn anyone by celebrating Christmas, but because I crave a public culture that is diverse and open to both secular and religious subgroups in the community.
   
  Rick Duncan


  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
   
  
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
   
  "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.


       
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